Victims Compensation Fund Corporation v GM & 5 Ors

Court of Appeal (NSW)|2004-04-28|Before: Mason P, Ipp JA, McColl JA

Reported Decision : 60 NSWLR 310 148 A Crim R 301

CITATION : Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185 HEARING DATE(S) : 28 April 2004 JUDGMENT DATE : 16 June 2004

JUDGMENT OF : Mason P at 1; Ipp JA at 2; McColl JA at 3 DECISION : 1. Order that the record of the proceedings before her Honour Judge Sidis DCJ at the District Court Newcastle on 18 June 2003 Nos. [383/03], [384/03], [385/03], [386/03] and [387/03] be removed into the Supreme Court of New South Wales. 2. Quash the orders made by Sidis DCJ in the proceedings. 3. Remit the proceedings to the District Court to be dealt with according to law. 4. Claimant to pay the opponents' costs as agreed or assessed.

CATCHWORDS : VICTIMS COMPENSATION - whether evidence of injury is required to establish that a victim of a sexual assault is a primary victim of an act of violence pursuant to ss 5(1) of the Victims Support & Rehabilitation Act 1996 (NSW) or is otherwise entitled to compensation in respect of the compensable injury of sexual assault - whether the facts of the sexual assaults in this case demonstrated actual physical contact amounting to 'harm' for the purpose of the definition of 'injury' in the Act. (D) Crimes Act 1900 (NSW) s 437, s 578A, s 578(3) District Court Rules 1973 (NSW) Pt 6 r 60C(4) Interpretation Act 1987 (NSW) s 34(1)(a) LEGISLATION CITED : Supreme Court Act 1970 (NSW) s 69(4) Victims Compensation Act 1987 (NSW) s 3(1) Victims Compensation Amendment Act 1998 (NSW) Schedule 1 cll [19]-[23] Victims Support and Rehabilitation Act 1996 (NSW) Pt 1, s 3(a), s 4(1), s 5, s 5(1), s 5(1)(b), s 5(1)(c), s 5(2), Pt 2, Div 1, s 6, s 6(a), s 7, s 7(1), s 8, Div 2, s 10, s 10(1), s 10(2), s 10(3), s 11, s 11(1), s 11(2), s 12, s 13, s 13(3), Div 3, s 14, s 15, s 16, s 17, s 17(1), s 19, s 19(1), s 20, s 20(1), Div 5, s 25(2), s 25(2)(a), s 26, s 26(3)(b), s 29(1), s 29(3), s 36, s 39, s 39(1), s 42(3), s 65, s 65(1), s 68(a), s 68(b), s 68(c), s 68(d), s 68(e), s 68(f), Pt 4, s 70(1), s 71(1)(a), s 75(4), s 72(2), s 90, Schedule 1, cl 1, cl 2, cl 3, cl 3(a), cl 3(b), cl 3(c), cl 5, cl 6, cl 7, cl 7A, cl 8, Dictionary Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Commonwealth v Baume (1905) 2 CLR 405 Council of the Municipality of Randwick v Rutledge & Ors (1959) 102 CLR 54 Craig v State of South Australia (1995) 184 CLR 163 Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628 Kelly v The Queen [2004] HCA 12; (2004) 205 ALR 274 CASES CITED : Mutual Acceptance Company Limited v The Federal Commissioner of Taxation (1944) 69 CLR 389 O'Brien v District Court of New South Wales & Anor (1996) 89 A Crim R 439 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Brown [1994] 1 AC 212 R v Donovan [1934] 2 KB 498 Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797 Victims Compensation Fund Corporation v Hill [2000] NSWCA 75 Victims Compensation Fund Corporation (Claimant) GM (First Opponent) CM1 (Second Opponent) PARTIES : CM2 (Third Opponent) CM3 (Fourth Opponent) CM4 (Fifth Opponent) District Court of New South Wales (Sixth Opponent) FILE NUMBER(S) : CA 40828/03 COUNSEL : C. L. Lonergan (Claimant) M.D. Broun QC/R Batley (Opponents 1 to 6) I.V. Knight (Crown Solicitor) (Claimant) SOLICITORS : McDonnell Schroder (Opponents 1 to 5) I.V. Knight (Crown Solicitor) (Opponent 6)

LOWER COURT District Court JURISDICTION : DC 383/03 LOWER COURT DC 384/03 FILE NUMBER(S) : DC 385/03 DC 386/03 DC 387/03 LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40828/03 DC 383/03;384/03;385/03;386/03; 387/03

MASON P IPP JA McCOLL JA

Wednesday, 16 June 2004 VICTIMS COMPENSATION FUND CORPORATION v GM & 5 ORS

The opponents, five children in one family, made claims for compensation pursuant to the Victims Support & Rehabilitation Act 1996 (NSW) (the "1996 Act") based upon multiple offences of sexual assault committed on them. No medical evidence was provided to the Victims Compensation Fund Corporation (the "Corporation") in support of any of the claims. The opponents contended that the 1996 Act provided for compensation in respect of offences involving sexual assault without requiring further evidence of injury. The compensation assessor dismissed the claims on the basis that the opponents had not established that they were victims of an "act of violence" as defined by s 5 of the 1996 Act. An appeal to a Tribunal Member was dismissed on the same basis. The opponents appealed to the District Court.

Sidis DCJ concluded that the opponents were eligible for statutory compensation. Her Honour held that on the proper construction of the 1996 Act, an applicant for compensation who was the victim of a "sexual assault" was not required to provide evidence that he or she had suffered any injury as a result of that assault. In the alternative, her Honour concluded that there was evidence that the opponents had been "injured" within the meaning given to the expression "injury" in the 1996 Act.

The Corporation sought relief in the nature of certiorari on the basis that the primary judge's reasons disclosed error of law on the face of the record.

HELD per McColl JA (Mason P and Ipp JA agreeing), granting the relief sought by the claimant:

Evidence of injury is required to establish that a victim of a sexual assault is a primary victim of an act of violence pursuant to ss 5(1) of the Victims Support & Rehabilitation Act 1996 (NSW) or is otherwise entitled to compensation in respect of the compensable injury of sexual assault: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Victims Compensation Fund Corporation v Hill [2000] NSWCA 75; Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668; Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797 referred to.

To establish "injury" within the meaning of the statutory definition it is not sufficient that the sexual assaults involved physical contact. "Bodily harm" is only established if there is hurt or injury calculated to interfere with the health or comfort of the victim which is not permanent, but is more than merely transient and trifling: R v Donovan [1934] 2 KB 498; R v Brown [1994] 1 AC 212 applied.

The facts of the sexual assaults in this case did not demonstrate actual physical contact amounting to "harm" for the purpose of the definition of "injury" in the 1996 Act.

ORDERS

Order that the record of the proceedings before her Honour Judge Sidis DCJ at the District Court Newcastle on 18 June 2003 Nos. [383/03], [384/03], [385/03], [386/03] and [387/03] be removed into the Supreme Court of New South Wales.

Quash the orders made by Sidis DCJ in the proceedings.

Remit the proceedings to the District Court to be dealt with according to law.

Claimant to pay the opponents' costs as agreed or assessed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40828/03 DC 383/03;384/03;385/03;386/03; 387/03

MASON P IPP JA McCOLL JA

Wednesday, 16 June 2004 VICTIMS COMPENSATION FUND CORPORATION v GM & 5 ORS Judgment

1 MASON P: I agree with McColl JA. 2 IPP JA: I agree with McColl JA. 3 McCOLL JA: This case concerns the question whether a victim of a sexual assault who provides no evidence that the sexual assault resulted in "injury" as defined in the Dictionary is eligible to receive statutory compensation pursuant to the Victims Support and Rehabilitation Act 1996 (NSW) (the "1996 Act"). 4 Sidis DCJ concluded that the opponents were eligible for statutory compensation for two reasons. First, her Honour held that on the proper construction of the 1996 Act, an applicant for compensation who was the victim of a "sexual assault" was not required to provide evidence that he or she had suffered any injury as a result of that assault. 5 Secondly, her Honour concluded in the alternative that there was evidence that the opponents had been exposed to "actual physical conduct amounting to harm or injury which was more than trifling or transient", so as to establish in her view that they had been "injured" within the meaning given to the expression "injury" in the 1996 Act.

6 In my opinion the primary judge erred in two respects. First, in finding that a person who had been a victim of a "sexual assault" was not required to provide evidence of "injury" to be eligible for an award of statutory compensation. Secondly, in finding that the facts of the sexual assaults in the case before her demonstrated actual physical contact which amounted to "harm" for the purpose of the definition of "injury" in the 1996 Act.

The parties 7 At the commencement of the hearing the Court drew the parties' attention to s 578A of the Crimes Act 1900 (NSW) as amended which prohibits publication of any matter identifying the complainant in prescribed sexual offence proceedings or any matter likely to lead to the identification of a complainant, a provision which applies even though the prescribed sexual offence proceedings have been finally disposed of (s 578A(3)). Counsel for the opponents then sought an order amending the pleadings so that the first five opponents, the victims, were identified by initials only. The Court ordered that each of the five opponents be identified only by initials, respectively "GM", "CM1", "CM2", "CM3" and "CM4". I shall refer to the first five opponents collectively as "the opponents". 8 The District Court of New South Wales was named as the sixth opponent in the proceedings. It submitted to the order of the Court, save as to costs.

Statement of the case 9 The background appears from the primary judge's reasons. 10 The matter involves five claims for compensation made pursuant to the 1996 Act based upon multiple offences of sexual assault committed on the opponents: five children in one family. The offender was charged with eleven counts of aggravated indecent assault, one count of aggravated sexual assault, one count of aggravated indecency involving a victim under sixteen and under the authority of the offender and one count of common assault. The offender pleaded guilty to three of the charges of aggravated indecent assault in full discharge of all others. The charge of common assault was taken into account by the District Court judge before whom the offender appeared for conviction and sentence. 11 Each child lodged a claim for statutory compensation pursuant to the 1996 Act. Each nominated "indecent assault/sexual assault" as the "compensable injury". No medical evidence was provided to the Victims Compensation Fund Corporation (the "Corporation") in support of any of the claims. 12 After the claims were lodged, the Corporation advised the opponents' solicitors that they needed to establish that they were victims of an "act of violence" as specified by s 5 of the 1996 Act. They were advised that where there was a claim of actual physical injury, medical evidence was required to support it, and where a psychological or psychiatric disorder was claimed, a report was required to establish the disorder. 13 The solicitors responded to the Corporation's letter contending that the 1996 Act provided for compensation in respect of offences involving sexual assault without requiring further evidence of injury. They stated that the children's parents did not wish to submit them to psychological examination which would reawaken the trauma of their experiences. The children's mother who was acting as their next friend in respect of their claims apparently submitted a statutory declaration to that effect to the Corporation. The statutory declaration was not in the papers which were before this Court. Nothing turns upon it for the purposes of resolving the current controversy. 14 A compensation assessor who considered the claims for compensation adjourned the applications for a period of eight weeks to allow the claimants an opportunity to obtain and submit medical evidence. The assessor drew the opponents' solicitor's attention to guidelines issued by the Corporation pursuant to s 65 of the 1996 Act. The significance of this, it appears, was to draw that solicitor's attention to a guideline requiring an applicant for statutory compensation to establish that he or she had been the victim of an "act of violence" within the meaning of s 5 of the 1996 Act. 15 Nothing further was submitted to the Corporation on the opponents' behalf. The compensation assessor proceeded to determine the applications and dismiss them. The compensation assessor's reasons did not doubt that each of the opponents was a victim of "sexual abuse" (I assume this was intended to be a reference to "sexual assault") but found they had not established that they were victims of an "act of violence" as defined by s 5. An appeal to a Tribunal Member pursuant to s 36 of the 1996 Act was dismissed on the same basis. 16 The opponents appealed to the District Court: s 39, 1996 Act. The appeal to the District Court raised two questions of law, which were identified in the Statement required by District Court Rules Part 6 r 60C(4) as: "2(a) Question of Law - Whether a child victim of sexual assault is a victim of an 'act of violence', without necessity of medical evidence of actual physical bodily harm or psychological or psychiatric disorder. (b) Further, and in the alternative the Tribunal erred in concluding that it was not provided with evidence to establish injury." 17 The primary judge heard the appeals on 4 June 2003. The parties agreed that the appeals involved questions of law. Leave to appeal was granted as required by s 39(1) of the 1996 Act. The Primary Judge's Reasons 18 The opponents argued before the primary judge that compensation was payable under the 1996 Act in accordance with the table and Schedule 1 once it was established that the claimant had been the victim of sexual assault as defined in cl 6 of the Schedule. Alternatively they argued that injury had been established for the purposes of s 5 by reference to the definition of "harm" in the Oxford Dictionary. 19 The Corporation contended before the primary judge that no compensation was payable under the 1996 Act unless it was established that a claimant for statutory compensation was a "primary victim". It argued that for that purpose it must be established that an "act of violence" within s 5 had occurred which, in turn, required proof of "injury", as defined, suffered as a consequence of the commission of an offence. 20 The primary judge accepted the opponents' submissions. She concluded the 1996 Act dealt with victims of sexual assault and domestic violence differently from victims of other forms of criminal offence. Her Honour attached particular significance to the fact that the definition of "sexual assault and domestic violence" in the Dictionary included types of offence which may involve no violence or actual physical contact between the offender and the victim as well as the fact that subsection (g) of the definition was the only section in which the phrase "resulting in injury" appeared. 21 Secondly, her Honour attached weight to the fact that "sexual assault" and "domestic violence" appear in Schedule 1 by reference to the offence involved rather than by reference to the part of the body which was injured or the disease or other medical condition suffered as a consequence of an offence. 22 Thirdly, her Honour regarded s 11 of the 1996 Act as significant because it referred to the specification "as a compensable injury" of all injuries received as a direct result of a particular "act of violence". As "sexual assault" and "domestic violence" were the only two "compensable injuries" described in the Schedule by reference to the offence, her Honour concluded that s 11 appeared "to be using the term 'act of violence' and 'offence' interchangeably." In other words, I understand her Honour to have concluded that the expression "specified act of violence" in s 11(1) should be read either as "sexual assault" or "domestic violence", so that offences within those categories as set out in Schedule 1 of themselves constituted acts of violence for the purposes of the 1996 Act. 23 The primary judge concluded that the reference to the offence of "sexual assault" in Schedule 1 meant that a victim of that crime could, without more, establish a "compensable injury" unless he/she elected to claim by reference to each separate injury received. In other words, it was sufficient for a victim who elected to claim compensation under any of categories 1, 2 or 3 of sexual assault in Schedule 1 to prove that he/she had been the subject of a sexual assault without also having to establish he/she had suffered an "injury" as defined. This was because the sexual assault was, itself, an "act of violence". 24 The primary judge concluded: "To find as contended by the respondent [the Corporation] would require the claimant to establish injury as a precondition to becoming eligible for compensation. Having become eligible, on the respondent's [the Corporation's] argument, it is not necessary for the claimant to establish any injury for the purpose of securing an award. It is not difficult to speculate why this special approach has been taken in the case of victims of sexual assault. Two reasons come immediately to mind; firstly, that sexual assault of the nature described in the Dictionary and cl 6 of Schedule 1 involves offences which are so abhorrent that victims of those offences should be eligible for compensation as a matter of right; or, alternatively, that victims of such crimes are presumed to have suffered injury by reason of the experiences to which they have been exposed." 25 The Corporation complains that this passage in the primary judge's reasons constitutes error of law on the face of the record sufficient to attract relief in the nature of certiorari. 26 The primary judge also found in favour of the opponents on the alternative basis that they in fact had suffered injury within the statutory definition. Her Honour reached that conclusion by the following route. First she set out the facts of each sexual assault. It is not necessary to repeat those details for the purpose of this judgment. Suffice it to say it was significant, according to her Honour, that each involved "physical contact by the offender with each of [the] children". Her Honour referred to R v Donovan [1934] 2 KB 498 and R v Brown [1994] 1 AC 212 for the proposition that "bodily harm" includes "any hurt or injury calculated to interfere with the health or comfort of the victim". Her Honour accepted that to fall within that classification, the hurt or injury need not be permanent but must be more than merely transient or trifling. 27 Her Honour concluded that the sexual assaults involved "actual physical contact amounting to harm or injury which was more than trifling or transient". Accordingly, she held the opponents had established the element of "injury" necessary to establish an "act of violence" so that they were eligible for statutory compensation.

(1) The determination of the Tribunal in each case is set aside. (2) Each case is remitted to the Tribunal to be considered and determined by the Tribunal in accordance with this decision on the question of law involved.

(3) Respondent (the Corporation) to pay the appellant's costs in respect of each appeal.

Proceedings in the Court of Appeal 29 There is no appeal to this Court from a decision of the District Court exercising jurisdiction under the 1996 Act. The proceedings are brought in this Court by the Corporation seeking the following relief:

(a) An order that the record of the proceedings in the District Court be removed into this Court and the orders made by the primary judge be quashed.

(b) A declaration that the primary judge erred in finding that no evidence of injury is required to establish that a victim of a sexual assault is a primary victim of an act of violence pursuant to ss 5(1) and (2) of the Victims Support and Rehabilitation Act 1996 or is otherwise entitled to compensation in respect of the compensable injury of assault.

(c) Alternatively, a declaration that the primary judge erred in finding that each of the first to fifth opponents inclusive were subject to actual physical contact which amounted to harm for the purposes of the definition of "injury" in the Dictionary to the said Act. 30 The Corporation agreed to pay the opponents' reasonable costs as agreed or as assessed no matter what the outcome of the proceedings. The record 31 The Corporation seeks relief in the nature of certiorari. An applicant for relief in the nature of certiorari must demonstrate jurisdictional error or error of law "upon the face of the record". No question of jurisdictional error arises in this case. 32 An affidavit sworn by Ms Hartman, a solicitor employed in the office of the Crown Solicitor for the State of New South Wales, was submitted in support of the Corporation's Further Amended Summons. That affidavit annexed the applications for compensation made by each of the opponents, correspondence between the solicitor for the opponents and the Tribunal, the determinations of the compensation assessor and the Tribunal and the papers filed in the District Court of New South Wales for the purposes of the opponents' appeals to that Court pursuant to s 39 of the 1996 Act as well as the primary judge's reasons for decision. The opponents did not object to any part of that affidavit. However the Court's consideration of the materials annexed to it is confined to the record in the District Court. 33 The Corporation submitted that the "record" was constituted by the reasons for decision of the primary judge and her Honour's orders as well as the determinations of the Tribunal and the compensation assessor. 34 The previously vexed question of what constitutes the "record" for the purposes of prerogative relief has been ameliorated by s 69(4) of the Supreme Court Act 1970 (NSW). Subsection 69(4) provides that in considering whether error of law appears on the face of the record, "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". Subsection (4) was inserted in s 69 following the decision in Craig v State of South Australia (1995) 184 CLR 163. In that case the High Court held, in a unanimous decision, that the record of an inferior court for the purposes of relief in the nature of certiorari did not include the transcript of proceedings, exhibits or reasons for decision unless incorporated by reference in the formal order of the inferior tribunal.

35 It was made clear in Craig (at 182) that the "record" includes the initiating process which grounds the jurisdiction of the lower Tribunal and any pleadings. In the present context, that would include the opponents' applications for compensation as well as the papers initiating the appeal to the District Court from the Tribunal determination. It would not include, however, contrary to the Corporation's submissions, the reasons for determination of either the costs assessor or the Tribunal: Craig, see also Victims Compensation Fund Corporation v Hill [2000] NSWCA 75 at [20]; cf O'Brien v District Court of New South Wales & Anor (1996) 89 A Crim R 439 at 443-444. This is of little moment in this case as these reasons appear to have been summarised in the primary judge's reasons.

Statutory Framework 36 The 1996 Act established a statutory compensation scheme to provide "support and rehabilitation for victims of crimes of violence": s 3(a). It repealed the Victims Compensation Act 1987 (NSW) (the "1987 Act") (s 90). 37 The 1996 Act was intended to introduce "a reformed scheme for compensating victims of violent crime": Second Reading Speech of the Attorney General, the Hon J W Shaw QC MLC, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 973. The reforms were developed in the following context: an election proposal to "overhaul … the victims' compensation system to ensure that the genuine needs of victims are met at reasonable cost to the community", "serious concerns" raised by the Auditor-General "about the financial viability of the current compensation scheme" and recommendations for reform contained in a review prepared by Mr Cec Brahe of the 1987 Act (the "Brahe Review"): Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at pp 973 - 974. 38 The Attorney General said (Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 974): "Given that victims compensation payments are largely financed from consolidated revenue, the Government has a clear responsibility to ensure that the scheme remains financially viable and that future compensation payments do not cause an unaffordable drain on public funds. The Government is equally committed to ensuring that genuine victims seriously injured by the violent criminal conduct of offenders have ready access to a fair, equitable and efficient victims compensation scheme. The reforms proposed by the Government … represent a major overhaul of the scheme as it currently operates. The principal aims to be achieved by the reforms are … to ensure that awards of compensation are directed towards those victims suffering the most serious injuries; and to address the escalating costs of the scheme such that the genuine needs of victims are met at a reasonable cost to the community. … The Government has acted … to tighten the definition of 'act of violence' to make clear that the scheme applies only when injury results from a violent criminal act ." (emphasis supplied) 39 The Brahe Review recommended that the definition of "act of violence" should be amended "to provide for payment of compensation to victims of violent crime only". However, Mr Brahe also observed (Brahe Review at p 21): "If there be any doubt, any amendment should protect the eligibility of victims of sexual and/or indecent assault. (17.7% of all cases involve a sexual or indecent assault)." 40 Mr Brahe's recommendation and observation are reflected in s 5 of which the Attorney General said (Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 977): "This overcomes interpretations of the existing provision which has resulted in awards of victims compensation for injuries occurring in the course of the commission of non-violent offences. The new definition is however, specifically extended to explicitly include sexual assault and apprehended domestic violence. This will ensure incidents of sexual assault not accompanied by physical violence, such as may occur in child sexual assault cases or cases involving non-violent threats of blackmail or assault committed by persons in authority, and acts of intimidation which may occur in the context of domestic violence are clearly recognised as constituting an act of violence." 41 Section 5 relevantly provides: " 5 Act of violence (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary). …" 42 The Attorney General also referred to the new minimum threshold of $2,400 and commented (Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 975) that it was: "…necessary to ensure that the resources of the scheme can be concentrated on the more seriously injured victims and that applications can be dealt with as quickly as possible." 43 After referring to the fact that the 1987 Act provided no guidance to the principles to be applied in determining awards of compensation, the Attorney General pointed out (Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 975 - 976): "Victims of crime and the community have a right to expect that victims compensation awards be consistent and equitable. The Government considers that this can most appropriately be achieved by standardising the amounts to be awarded for similar injuries. The reform proposal provides for compensation for injury to be determined according to a comprehensive injury and award schedule. An applicant will receive an award based on the severity of the injury suffered. The schedule of awards published in the Bill lists specific categories of injuries to which are assigned specific award amounts. The injury schedule makes special provision for certain categories of sexual assault, where a range of minimum and maximum awards will apply. Categories of sexual assault have been specifically identified in the schedule, in addition to the injury categories, to recognise the particular needs of this group of victims. A victim of sexual assault claiming compensation either may choose to claim under a relevant sexual assault category or may instead elect to claim for other relevant injuries listed in the schedule. The schedule is structured to ensure that compensation is directed towards those victims suffering the most serious injuries. The award amounts proposed in the injury schedule also give greater recognition to the length of time an injury may be suffered and to those injuries where there is continuing disability … The Government considers that the injury schedule provides a fair and consistent basis for comparing the severity of different injuries, as well as providing an equitable basis for providing for the competing needs of victims." (emphasis supplied) 44 I turn then to consider the detail of the 1996 Act. 45 Expressions that are defined in the Dictionary have the meaning given to them in that Dictionary: s 4(1). The Dictionary defines "act of violence" to have the meaning given to that expression by s 5. "Compensable injury" has the meaning given to it by s 10 and Schedule 1. 46 "Injury" is defined in the Dictionary as follows: " Injury" means: (a) actual physical bodily harm, (b) psychological or psychiatric disorder, … but does not include injury arising from loss or damage to property." 47 "Sexual assault and domestic violence" is defined in the Dictionary as follows: "sexual assault and domestic violence" means any of the following: (a) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent (within the meaning of section 61R of the Crimes Act 1900) or with consent obtained by means of a non-violent threat (within the meaning of section 65A of the Crimes Act 1900), or (b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having an intellectual disability (within the meaning of section 66F of the Crimes Act 1900), or

(c) self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat (within the meaning of that section), or (d) the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person, or (e) participation with a child under the age of 18 years in an act of child prostitution (within the meaning of section 91C of the Crimes Act 1900) or the use of a child under the age of 18 years for pornographic purposes (within the meaning of section 91G of the Crimes Act 1900), or (f) the intimidation or stalking of a person (within the meaning of section 562A of the Crimes Act 1900) in apparent contravention of an apprehended violence order in force under Part 15A of that Act, or (g) any other act resulting in injury that occurred in the commission of a domestic violence offence (within the meaning of the Crimes Act 1900)." 48 Part 2 of the 1996 Act deals with (among other matters) the statutory compensation scheme. Division 1 is headed "Victims Eligible for Statutory Compensation". It includes ss 6 and 7. A "primary victim of an act of violence" is eligible for statutory compensation: s 6(a). A primary victim of an act of violence is, relevantly, a person who receives a "compensable injury" as a direct result of that act: s 7(1). 49 Division 2 of Part 2 is headed "Schedule of Compensable Injuries". It includes ss 10, 11 and 13. 50 Section 10 provides: " 10 Prescription of schedule of compensable injuries

(1) The schedule of compensable injuries is set out in Schedule 1. (2) The schedule specifies those injuries that are compensable injuries for the purposes of this Act. (3) The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts." (emphasis in original) 51 Section 11 provides: " 11 Compensable injuries described by reference to act of violence (1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries. (2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries).

(3) In the absence of an election, the person determining the application is to make the election. Note. See injury described in Schedule 1 as sexual assault." 52 Section 11 was intended, as the note indicates and the Second Reading Speech said, to give effect to the proposition that victims of sexual assault claiming compensation may choose either to claim under a relevant sexual assault category or may elect to claim for other injuries listed in the Schedule. In 1998, in circumstances which I will shortly detail, Schedule 1 was amended to include a category of "domestic violence" with the intention of giving victims of such offences a right to elect pursuant to s 11(2). 53 Subsection 13(3) relevantly provides: "13 Provisions relating to schedule

… (3) The schedule may contain provisions relating to the application of the schedule (including provisions relating to the interpretation of the schedule, provisions relating to establishing whether an injury is a compensable injury and provisions of a transitional nature consequent on the amendment of Schedule 1)." 54 Sections 15 and 16 deal with the compensation payable to secondary victims and family victims respectively. 55 Division 3 of Part 2 deals with "Statutory Compensation Payable". Section 14 relevantly provides: " 14 Compensation payable to primary victims

(1) The statutory compensation for which a primary victim of an act of violence is eligible comprises: (a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and …" 56 Section 17 provides: "17 Compensation for compensable injuries (1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries. (2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule." 57 Section 19(1) caps the maximum amount of statutory compensation payable at $50,000. 58 Section 20 relevantly provides: "20 Threshold amount of compensation (1) Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person, as compensation for compensable injuries, is at least: (a) subject to paragraph (b) - $2,400, or (b) such other amount as is fixed by proclamation. …

(4) This section applies despite any other provision of this Act." 59 Division 5 of Part 2 deals with "Applications for statutory compensation". An application must be made in the form required by the rules (s 25(2)(a)) and must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form (s 25(2)). 60 Section 26 requires an application for statutory compensation to be lodged within two years after the relevant act of violence occurred. An application lodged out of time may, however, be accepted with the leave of the Director, Victims Services. In giving that leave in a case of sexual assault, the Director is to apply the policy that leave should be given unless the Director is satisfied that there is no good reason to do so (s 26(3)(b)). 61 After considering an application for statutory compensation a compensation assessor may make an award of statutory compensation (s 29(1)) which award is, upon application for payment, to be paid out of the Victims Compensation Fund (s 42(3)). In determining the application, the compensation assessor must have regard to guidelines issued by the Victims Compensation Tribunal under s 65 (s 29(3)). Section 65(1) enables the Tribunal to issue guidelines, consistent with the Act and the rules, to compensation assessors with respect to the determination of applications for statutory compensation. 62 The Victims Compensation Fund comprises, in substance, monies confiscated pursuant to proceeds of crime legislation (ss 68(a) and (b)), monies recovered pursuant to provisions of the 1996 Act itself (s 68(c)), monies advanced by the Treasurer or procured by parliamentary appropriations (s 68(d)) and monies from other miscellaneous sources (ss 68(e) and (f)). 63 Part 4 of the 1996 Act deals with "Compensation awarded by a court". It is not necessary to set out the provisions of Part 4 in detail. It is sufficient to note that where a person is convicted of an offence, the Court may, after giving notice to the offender, direct that a sum not exceeding $50,000 be paid out of the property of the offender to any "aggrieved person": s 71(1)(a). The Court's jurisdiction can be invoked no matter the nature of the offence, as long as injury has been sustained "through or by reason either of an offence for which the offender has been convicted or an offence taken into account when sentence was passed on the offender for that offence" by an aggrieved person (s 70(1)). The Court's power is not confined to victims of an "act of violence". The offender must pay compensation awarded by a Court. If the offender does not pay the compensation, it is not payable from either the Compensation Fund or any other public money: s 75(4). A Court may not direct compensation be paid if an award of statutory compensation has been made under Part 2 (s 72(2)). 64 Schedule 1 deals with "compensable injury". The Schedule includes ten clauses which are of an interpretative nature as contemplated by s 13(3) and a table, column 1 of which sets out what is described as "description of injury", while column 2 sets out the "standard amount of compensation" against the relevant injury. 65 Clauses 1 and 2 of Schedule 1 provide: 1 Description of compensable injuries The injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act. 2 Standard amount of compensation The standard amount of compensation for any such compensable injury is the amount, or an amount within the range of amounts, specified in column 2 of the table to this Schedule opposite the injury." 66 Clause 3 deals with multiple injuries. It ensures that where two or more compensable injuries are "received" by an eligible victim, the standard amount of compensation will be the full standard amount for the most serious injury (cl 3(a)), 10% of the standard amount for the second most serious injury (cl 3(b)), 5% of the standard amount for the third most serious injury (cl 3(c)) and no amount for further injuries. 67 Clause 6 sorts the Dictionary definition of sexual assault into categories of ascending seriousness as follows: " 6 Sexual assault

The following applies to the compensable injury of sexual assault: (a) Category 1 sexual assault consists of: • indecent assault, or • an assault with violence in the course of attempted unlawful sexual intercourse. (b) Category 2 sexual assault consists of: • unlawful sexual intercourse, or • the infliction of serious bodily injury in the course of attempted unlawful sexual intercourse. (c) Category 3 sexual assault consists of: • a pattern of abuse involving category 1 or category 2 sexual assault, or • unlawful sexual intercourse in which serious bodily injury is inflicted, or • unlawful sexual intercourse in which 2 or more offenders are involved, or • unlawful sexual intercourse in which the offender uses an offensive weapon.

In this paragraph: indecent assault means the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person. unlawful sexual intercourse means sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat, sexual intercourse with a child under the age of 16 years or with a person having an intellectual disability or self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat within the meaning of that section." 68 The definitions of "indecent assault" and the three meanings attributed to "unlawful sexual intercourse" in cl 6 reflect, respectively, paragraphs (d), (a), (b) and (c) of the definition of "sexual assault and domestic violence" in the Dictionary. 69 The range of compensation for "sexual assault" in the table in Schedule 1 reflects, as might be expected, the severity of the criminality associated with the cl 6 categorisation. It states: Sexual Assault

Category 1 $7,500 - $10,000 Category 2 $10,000 - $25,000 Category 3 $25,000 - $50,000 70 The table in Schedule 1 is extensive. Under headings such as "brain damage", "burns", "head", "torso" etc, it lists fractures to various parts of the skeleton and injuries such as burns and concussion "lasting at least one week". In some cases the description under the relevant heading relates to the degree of injury to the relevant area. Thus, in relation to the heading "brain damage", the following appears: Moderate impairment of social/intellectual functions $36,000 Serious impairment of social/intellectual functions $50,000 Permanent/extremely serious (no effective control of functions) $50,000

Victims Compensation Amendment Act 1998 71 The 1996 Act was amended by the Victims Compensation Amendment Act 1998 (NSW) (the "1998 Act") which was assented to on 30 November 1998. The amendments arose from recommendations in the Second Interim Report of the Joint Select Committee on Victims Compensation entitled "The Long Term Financial Viability of the Victims Compensation Fund". 72 The 1998 Act accepted a recommendation of the Joint Select Committee to restrict claims for psychological injury to victims of sexual assault, domestic violence and other victims demonstrating a permanent psychological injury. This was intended to deal with the fact that the categories of "shock" which were included in the Schedule 1 table as first enacted enabled applicants who would not be eligible for compensation for minor physical injury to claim "shock" as their major injury and obtain compensation: Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 22 October 1998 at p 8855. 73 The 1998 Act amended Schedule 1. The category of "shock" was deleted. Clause 5 dealing with psychological or psychiatric disorder and the categories of psychological or psychiatric disorder in the table were inserted. Clause 7A relating to domestic violence was also inserted: Victims Compensation Amendment Act 1998, Schedule 1, clauses [19] - [23].

74 In his Second Reading Speech the Minister responsible for the Bill which became the 1998 Act said (New South Wales Legislative Council, Parliamentary Debates (Hansard) 22 October 1998 at p 8855): "The Bill also provides for the creation of a new global injury category of domestic violence. As the Select Committee acknowledges, on present award trends, the majority of claims arising from domestic violence have been for psychological injury. The creation of this injury category will enable such claims to continue to be considered. The creation of this category will enable domestic violence victims, like sexual assault victims, to elect whether they wish to claim for separate injuries suffered, or alternatively apply for a global award. The changes to the approach in providing monetary awards for psychological injury will ensure that genuine claims for severe psychological injury, which could occur as a result of for example a vicious street assault, an armed hold up or an armed home invasion, may still be considered. The changes will also ensure that psychological injury may still be claimed by sexual assault victims and victims of domestic violence, which is commonly the major injury they experience." (emphasis supplied) 75 Clause 5 provides: " 5 Psychological or psychiatric disorder (1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director. (1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1). (2) The Director may suspend or revoke the designation of a person under subclause (1). (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences: (a) armed robbery,

76 Clause 7A provides: "7A Domestic Violence (1) The compensable injury of domestic violence consists of the following: (a) injury resulting from an act that occurred in the commission of a domestic violence offence (within the meaning of the Crimes Act 1900). (b) without limiting paragraph (a), injury arising from the intimidation or stalking of a person (within the meaning of section 562A of the Crimes Act 1900) in apparent contravention of an apprehended violence order in force under Part 15A of that Act." 77 The 1998 amendments to the table in Schedule 1 created 2 categories of psychological or psychiatric disorder in the following terms: "Psychological or psychiatric disorder Category 1, chronic psychological or psychiatric disorder that is moderately disabling. Category 2, chronic psychological or psychiatric disorder that is severely disabling." 78 A category relating to domestic violence was also inserted in the table as follows:

Domestic Violence $7,500 - $10,000 The Corporation's submissions 79 The Corporation submitted that the legislative intention was clear and that an applicant could not be awarded compensation for a "compensable injury", without first establishing all three elements of the s 5 definition of an "act of violence" - including "injury" (s 5(1)(c)). It argued that the s 5 definition of "act of violence" was a "gateway" provision, all elements of which had to be established before a person could be considered to be a "victim" for the purpose of the 1996 Act. In this context it contended that the "injury" referred to in s 5(1)(c) was separate and distinct from the "compensable injury" of "sexual assault" referred to in Schedule 1 to the 1996 Act. 80 The Corporation acknowledged that s 5(2) treated 'sexual assault and domestic violence' differently by extending the meaning of s 5(1)(b) to ensure that "violent conduct" included both sexual assault and apprehended domestic violence. It submitted that it was significant, however, that the legislature had not stated expressly that "sexual assault" was, of itself, an "act of violence". 81 The Corporation submitted that the primary judge's interpretation of s 11 ignored the effect of s 11(1). It contended that s 11(1) made it mandatory that for s 11 to apply the "injuries" had to be a direct result of the nominated "act of violence". 82 The Corporation drew attention to Spigelman CJ's observations in his dissenting judgment in Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 at [10] - [11] to which I refer in more detail below and, in particular, to his Honour's emphasis that the Court was "not required to give the 1996 Act the most expansive possible interpretation of [the] circumstances in which compensation is payable". 83 The Corporation also submitted, in challenging the alternative basis upon which the primary judge found in favour of the opponents, that her Honour was in error in finding that each of the assaults "necessarily involved physical contact" and that such "contact" amounted to harm or injury, absent any evidence thereof.

The Opponents' submissions 84 The opponents submitted that for the purposes of the 1996 Act, "sexual assault is, by itself and without more, a compensable injury". They drew attention to the objects of the 1996 Act specified in s 3(a), submitting that the 1996 Act was remedial in nature. 85 They contended that the question of what was meant by the term "injury" in s 5(1)(c) was answered in the case of a "sexual assault" by having regard to s 10 and Schedule 1. They submitted "a harm could not be a compensable injury unless it was an "injury" within the meaning of the [1996] Act." They argued that the term "injury" in s 5(1)(c) was "effectively" defined by s 10(2) providing that "the Schedule specifies those injuries that are compensable injuries for the purposes of this Act". In other words they contended that if a matter appeared in Schedule 1 it was an "injury" for the purposes of s 5(1)(c) whether or not it fitted within the Dictionary definition of that term. This meant that the reference in Schedule 1 to "sexual assault" as a "compensable injury" was tantamount to saying that a "sexual assault is itself injurious". 86 The opponents drew attention to the fact that the sexual assaults referred to in cl 6 of Schedule 1 could take place without the victim suffering "bodily harm". They pointed to the contrast between cl 6 and cl 7A - with the latter clause expressly referring to "injury resulting/arising" from the "compensable injury of domestic violence". Accordingly, they argued, the 1996 Act should be interpreted as meaning that a sexual assault in any of categories 1, 2 or 3 of cl 6 was a "compensable injury" without the victim having to establish that he/she had suffered any of the physical injuries exhaustively listed in the table in Schedule 1. 87 Finally, the opponents argued that once it was established that they had been the victims of a "sexual assault", "injury" was established within the meaning of the 1996 Act and the sexual assault was a "compensable injury". Thus, they contended, "there is no other injury to be inquired about other than the injury inherent in a sexual assault".

Consideration 88 Section 10 must be construed in a manner which is "consistent with the language and purpose of all the provisions" of the 1996 Act: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ. 89 The proper approach to the interpretation of the 1996 Act was considered recently in Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797. In that case Heydon J (with whose reasons McHugh, Gummow, Kirby and Hayne JJ agreed) considered whether the word "and" as it appeared in the phrase "symptoms and disability" in Schedule 1, cl 5 dealing with "shock" prior to the amendments effected by the 1998 Act was to be read conjunctively or disjunctively. Heydon J held that the word should be construed conjunctively with the consequence that a person who suffered symptoms of shock but no disability was ineligible for victims' compensation. 90 The following propositions may be gleaned from Heydon J's analysis of the 1996 Act. 91 First, legislative schemes concerning compensating victims of crime which, in New South Wales, date back at least to s 437 of the Crimes Act 1900 (NSW), have always required the claimant to establish that he or she had sustained injury or loss by reason of the relevant crime. Thus s 437 enabled a Court before whom an offender was tried and convicted to "direct that a sum not exceeding five hundred pounds be paid out of the property of the offender to any aggrieved person, by way of compensation for injury, or loss, sustained through, or by reason of, such felony". Although the power to compensate victims of crime "widened over time" ([18]), it was always founded on the proposition of "compensation for injury" or "loss" (see [19]-[21]). The 1987 Act made four classes of victims of acts of violence eligible for "compensation for injury". "Compensation for injury" in relation to primary or secondary victims meant, inter alia, compensation for pain and suffering and compensation for loss of enjoyment of life (s 10(1); see Brown at [19] - [23]). It might be noted that an "act of violence" for the purposes of the 1987 Act meant, in effect, an offence which "resulted in injury or death to one or more persons" (s 3(1)). 92 Secondly, the repeal of the 1987 Act and the enactment of the 1996 Act were intended to limit eligibility to recover compensation both for "relevantly insignificant and very significant injuries": Brown at [28]. This was achieved by establishing a monetary threshold of $2,400 for recovery (s 20(1)) and a cap of $50,000 in relation to any one act of violence (s 19). 93 Thirdly, where legislation granted compensation but subjected the grant to numerous restrictions, the fact that a conjunctive construction of the word "and" could be said to have "harsh or anomalous" outcomes would not be fatal if the text required such a construction: Brown at [29]. 94 Fourthly, while the 1996 Act confers benefits and should not be construed restrictively, specific limiting words did not permit "much liberality of construction": Brown at [33]. 95 Heydon J explicitly endorsed (at [12]) Spigelman CJ's dissenting judgment in Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668. In that case Spigelman CJ observed: "9 In a passage that has been frequently cited with approval (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248; Brennan v Comcare (1994) 50 FCR 555 at 574; Morrison v Peacock (2000) 50 NSWLR 178 at [33]), the Supreme Court of the United States said in Rodriguez v United States 480 US 522 (1987) at 525-526: "… No legislation pursues its purposes at all costs . Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." [emphasis supplied]

10 In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation (cf. Favelle Mort Ltd v Murray (1976) 133 CLR 580). In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise." 96 When regard is had to the structure of the 1996 Act the role of s 10 is apparent. 97 It is significant to note that definitional provisions appear in several places. The Dictionary defines "act of violence" and "compensable injury" to have the meanings given in s 5 and s 10 respectively. Section 5 appears in Part 1, which is headed "Preliminary" while s 10 appears in Part 2, Division 2 headed "Schedule of compensable injuries". 98 Part 2 is headed "Approved counselling scheme and statutory compensation scheme". 99 Divisions 1 and 2 of Part 2 also serve definitional purposes. Division 1 is headed "Victims eligible for statutory compensation". It provides that eligibility for statutory compensation turns upon the relevant person (the primary, secondary or family victim) having been the victim of an "act of violence" (s 6) who receives a "compensable injury" (ss 7 and 8). 100 Division 2 deals with the topic "Schedule of compensable injuries" in ss 10-13. Section 10(1) identifies Schedule 1 as setting out the "Schedule of compensable injuries". Section 10(2) identifies the Schedule as specifying those injuries that are compensable injuries for the purposes of the 1996 Act. Section 10(3) explains what the Schedule specifies "as the standard amount of compensation for a compensable injury", being either a "specified amount or an amount within a range of specified amounts". 101 Section 11, which I will deal with in greater detail below, enables particular victims to elect to claim either a single standard amount or range of compensation. 102 Section 12 deals with amending the Schedule by regulation. Section 13 identifies provisions which may appear in the Schedule. 103 Division 3 of Part 2 deals with "Statutory compensation payable". It contains substantive provisions which identify the statutory compensation for which primary victims (s 14), secondary victims (s 15) and family victims (s 16) are eligible. Section 17(1) provides that "compensation for compensable injuries is payable in accordance with the schedule of compensable injuries". Section 19 deals with the maximum amount of compensation, while s 20(1) precludes a person from recovering compensation unless the total amount of compensation payable to the person is $2,400. 104 Identifying a person who is prima facie eligible for statutory compensation depends first upon determining whether or not that person has been a victim of an "act of violence" within the meaning of s 5. Relevantly that requires the claimant for compensation to demonstrate that the offence to which he or she has been subjected "resulted in injury or death" (s 5(1)(c)). This requirement is reflected in Part 4, dealing with compensation awarded by the Court, which requires the aggrieved person to establish that he/she has "sustained injury" by reason of the offence. 105 Proof of "injury" turns upon demonstrating the victim suffered either actual bodily harm or psychological or psychiatric disorder. 106 Subsection 5(2) extends the meaning of "violent conduct" in s 5(1)(b) to "sexual assault and domestic violence". It does so because, as the Attorney General acknowledged in his Second Reading Speech, some "incidents of sexual assault [are] not accompanied by physical violence". 107 A claimant can only be considered to be a primary, secondary or family victim (s 6) if he/she has crossed the threshold of demonstrating that he/she has been the victim of an "act of violence". It is only after that threshold test has been satisfied that the question of whether the "injury" is a "compensable injury" arises (ss 7 and 8). 108 The Dictionary then directs one to s 10 to determine the meaning of "compensable injury". Section 10 is a definition section. It has no substantive effect. It serves the function of indicating that when the phrase "compensable injury" appears in the 1996 Act, it refers to the matters set out in Schedule 1: see Mutual Acceptance Company Limited v The Federal Commissioner of Taxation (1944) 69 CLR 389 per Rich J at 398; Council of the Municipality of Randwick v Rutledge & Ors (1959) 102 CLR 54 per Menzies J at 62, Windeyer J at 69; Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628 at 635 per Barwick CJ, McTiernan and Taylor JJ and at 640 per Windeyer J; see also Kelly v The Queen [2004] HCA 12; (2004) 205 ALR 274 per McHugh J at [84]. 109 Qualifying the defined term "injury" by the adjective "compensable" does not enlarge the definition of "injury" in the Dictionary. Once a term is given a particular meaning in an Act, prima facie, all references that are derived from or associated with that term should be treated as based on the defined meaning of that term: see Statutory Interpretation in Australia, Pearce and Geddes, Butterworths, 5th Edition, at 6.61. Nothing in the 1996 Act warrants departure from that presumption. Just as the term "injury" should be read wherever it appears in the 1996 Act as referring to "actual bodily harm" and/or "psychological or psychiatric disorder" so, too, "compensable injury" should be read as referring to "compensable actual bodily harm" or "compensable psychological or psychiatric disorder". 110 "Injury" is qualified by the adjective "compensable" to ensure that a claimant seeking to recover statutory compensation establishes that he/she has suffered an "injury" (as defined in the Dictionary) but only as set out in Schedule 1. This is confirmed by cl 1 of Schedule 1 which provides that "[t]he injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act." 111 The phrase "compensable injury" thus serves the purpose of restricting the category of persons eligible for statutory compensation. Eligibility does not turn merely upon demonstrating that a person has been the victim of an "act of violence" and has suffered some injury. It turns upon both establishing those matters and that the "injury" is "compensable" because it appears in Schedule 1. This achieves the legislative purpose of ensuring that "compensation is structured towards those victims suffering the most serious injuries" (Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 976). 112 Turning to Schedule 1, clauses 5, 6, 7 and 7A are provisions which establish whether an injury is a compensable injury: s 13(3). They are operational or substantive provisions, not definitions: Victims Compensation Fund Corporation v Brown per Spigelman CJ at [8]. 113 The phrase in cll 6 and 7, "[t]he following applies to the compensable injury of..." (which Spigelman CJ described as "elliptical introductory words" - Victims Compensation Fund Corporation v Brown at [6]) are words of limitation: Victims Compensation Fund Corporation v Brown at [7]. They do not lend themselves to the liberality of construction which acceptance of the opponents' submissions would require: cf Victims Compensation Fund Corporation v Brown [2003] HCA 28 at [33]. 114 Clause 6 limits the category of victims of sexual assault who can claim either a sum in the range of compensation provided for the "injury" of sexual assault or who can "claim compensation of the total standard amounts for each of the injuries received by the applicant": s 11. It achieves that goal by limiting the Dictionary definition of (inter alia) "sexual assault" to victims of the offences referred to in clauses (a), (b), (c) and (d) of that definition. Victims of the offences referred to in sub-paragraph (e) of the Dictionary definition of sexual assault do not fall within any of the three categories of "sexual assault" in cl 6. Such victims could only recover statutory compensation by proving that they had suffered a "compensable injury" under one of the other headings in the table in Schedule 1. 115 It is true that Schedule 1, at least in its reference to "the compensable injury of sexual assault" might be regarded as somewhat infelicitously expressed, recalling Heydon J's observation in Victims Compensation Fund Corporation v Brown (above at [15]) that "the drafting has not perhaps been uniform or flawless throughout". In seeking to recognise the particular needs of victims of sexual assault, the legislature has referred, somewhat maladroitly, to the offence which gives rise to the injury rather than, as in the case of all other entries in the table to the Schedule save "domestic violence", to injuries to specific parts of the body. 116 It is clear that what the legislature was seeking to do was to specify "as a compensable injury, all injuries received as a direct result of a specified act of violence" and "a single standard amount or range of compensation for all of those injuries" for the purpose of s 11(1). This achieved the legislature's intention of giving victims of sexual assault the right to elect between claiming a sum within the range of compensation for any of categories 1, 2 or 3 of sexual assault or electing to claim compensation of the total standard amounts for each of the injuries by reference to other parts of the table in Schedule 1: see s 11(2); Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 976. 117 This is made clear by the fact that before the concept of a "compensable injury" comes to be applied, the definition of "injury" has already been established in the context of determining whether or not a person has been the subject of an "act of violence". 118 There are strong indications that the legislation uses "injury" and "compensable injury" in contradistinction to one another, rather than interchangeably as the primary judge concluded. This, in my view, is sufficiently apparent from the separate definitions of "injury" and "compensable injury" in the Dictionary. If reinforcement of the proposition is necessary it might be found in the numerous provisions in which "injury" is clearly used in a different sense to "compensable injury": see s 10(2), s 11(1), clauses 1 and 8 of Schedule 1. 119 The opponents' contention that the term "injury" in s 5(1)(c) in the case of "sexual assault" is effectively defined by s 10(2) is untenable. It would require, in effect, re-writing the 1996 Act where the claimant had been the victim of a sexual assault. Section 5(1)(c) would have to be read as saying "that has resulted in the compensable injury of sexual assault or death to one or more of those persons". Because the element of "injury" in s 5(1)(c) would already have been established by dint of that exercise, the reference to "compensable injury" in, for example, s 7 would be otiose. That would be inconsistent with the principle of statutory interpretation that "a court construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 [71] per McHugh, Gummow, Kirby and Hayne JJ. In Project Blue Sky, their Honours referred, with approval, to Griffith CJ's statement in The Commonwealth v Baume (1905) 2 CLR 405 at 414 that it was: "…a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 120 The opponents' argument falls foul of that principle in several respects. It involves by-passing the Dictionary definition of "injury" for victims of sexual assault. This is an improbable approach to legislation which was intended to direct awards of compensation to those suffering the most serious injuries.

121 Further, if the opponents' argument was correct then, as Mr Broun QC conceded, any victim of a sexual assault which fell into one of the three categories set out in Schedule 1 would be entitled to at least the minimum payment allocated to that category ($7,500, $10,000 and $25,000 respectively) without having to establish that the sexual assault had resulted in actual physical bodily harm or psychological or psychiatric disorder. Moreover, if a victim of a sexual assault did not have to establish that he/she had suffered "injury", the compensation assessor would have no way of determining what amount within the range of compensation provided for categories 1, 2 and 3 should be awarded. Mr Broun QC suggested the amount could be assessed by reference to the nature of the offence itself. Such an interpretation would be inconsistent with the general purpose and policy of the 1996 Act: see Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon J; see also Project Blue Sky Inc & Ors v Australian Broadcasting Authority at [69]; Kelly v The Queen [2004] HCA 12; (2004) 205 ALR 274 at [84]). 122 The primary judge, as I have already noted, attached particular significance to the fact that the definition of "sexual assault and domestic violence" in the Dictionary included types of offence which may involve no violence or actual physical contact between the offender and victim as well as the fact that ss (g) of the definition was the only section in which the phrase "resulting in injury" appeared. 123 The first point to make about that aspect of her Honour's judgment is that the definition of "sexual assault and domestic violence" in the Dictionary has only a qualified relevance in relation to Schedule 1. First, cl 6 makes it clear that in order to claim any sum of compensation for sexual assault within any of categories 1, 2 or 3, the definitions of "indecent assault" and "unlawful sexual intercourse" in that clause are the definitions which must be used. 124 Secondly, the fact that the various categories of sexual assault and domestic violence referred to in the Dictionary may not involve violence or actual physical contact is not determinative. The effect of ss 5(2) is to extend the concept of "violent conduct" for the purposes of s 5(1)(b) to sexual assault and domestic violence. Thus the 1996 Act has already recognised at the threshold stage that sexual assault and domestic violence satisfy the definition of "act of violence" even where they did not involve violent conduct. Further, the fact that a sexual assault may not lead to actual physical bodily harm is only one aspect of the concept of "injury" in the 1996 Act. As the Minister made clear in the Second Reading Speech to the 1998 Act (NSW Legislative Council, Parliamentary Debates, (Hansard) 22 October 1998 at p 8855) the "injury" which sexual assault victims suffer is commonly of a psychological nature. 125 It is clear, in my view, that the passage in the primary judge's reasons about which the Corporation complains as constituting error on the face of the record was erroneous. Contrary to her Honour's conclusion, it is, in my view, necessary for the claimant to establish both an "injury" as a precondition to becoming eligible for compensation and, further, to establish that he or she has suffered a "compensable injury". 126 The legislature has demonstrated a benevolent approach to victims of sexual assault at least in the following respect. It has done so both by extending the meaning of "violent conduct" in s 5(1)(b) (s 5(2)) and by giving such victims a right to elect how to claim compensation (s 11(2)). There is no indication in the 1996 Act, however, that a victim of an act of violence is to receive compensation without demonstrating that he or she has been injured in the relevant sense. That proposition would be inimical to the concept of a compensation scheme.

127 In my view, rather than, as the primary judge concluded, victims of sexual assault becoming eligible for compensation "as a matter of right" or being "presumed to have suffered injury by reason of the experiences to which they have been exposed", the 1996 Act makes it clear that they must establish they have suffered an injury within the meaning of the 1996 Act in order to be entitled to compensation.

128 Such an approach is also consistent with the legislative history of the 1996 Act which, I have earlier observed, demonstrates that claimants for compensation were required to establish that they had suffered injury or loss by reason of the relevant crime. 129 Finally, I would note that the beneficial purpose of the 1996 Act is still well served if a victim of a sexual assault is required to establish that he or she has suffered "injury" within the meaning of the Act in order to be eligible for statutory compensation: cf Victims Compensation Fund v Brown [2002] NSWCA 155 at [13]; (2002) 54 NSWLR 668 at 672 [13] per Spigelman CJ. 130 The opponents' submission that the legislation is remedial in nature, with its implicit premise that it should be given a liberal interpretation, was expressly rejected in the High Court in Victims Compensation Fund Corporation v Brown. Heydon J at [33] observed that such an approach "tends to obscure the essential question, that of determining the meaning the relevant words used require". His Honour continued: "Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in Table 1 to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: 'The issue before the Court is the determination of the circumstances in which compensation is payable.' The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence '[t]he Court is not required to give the most expansive possible interpretation of such circumstances'." 131 In my view the words of s 10 do not lend themselves to the interpretation for which the opponents contend. The Second Reading Speech confirms that the meaning of the provision is the meaning conveyed by 1996 Act: s 34(1)(a) Interpretation Act 1987 (NSW). 132 I turn then to the alternative basis upon which the primary judge determined that the opponents had, in fact, suffered "injury" within the statutory definition. 133 In R v Donovan [1934] 2 KB 498 at 509 Swift J, delivering the judgment of the Court of Criminal Appeal, said: "'Bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling." 134 Swift J's statement was referred to with approval by Lord Templeman in R v Brown [1994] 1 AC 212 at 230, 242 (per Lord Jauncey of Tullichettle) (with both of whom Lord Lowry agreed).

135 The primary judge concluded that actual physical contact between the offender and the opponents of itself amounted to "harm or injury which was more than trifling or transient". In other words she concluded that in these cases it was sufficient to prove that there was "injury", that the sexual assaults involved physical contact. 136 This was an erroneous application of the authorities. Those cases made it plain "bodily harm" was only established if there was hurt or injury calculated to interfere with the health or comfort of the victim and that the hurt or injury need not be permanent, but must be more than merely transient and trifling. 137 There was nothing in the facts of the various offences which supported the proposition that the physical contact involved had led to any of the opponents suffering "harm or injury". That, of course, was the nub of the argument advanced by the opponents in respect to the first issue determined by her Honour, namely that they did not propose to adduce any evidence that they had suffered any such "harm or injury". In the circumstances, it is plain in my view that her Honour's alternative conclusion was manifestly wrong.

Order that the record of the proceedings before her Honour Judge Sidis DCJ at the District Court Newcastle on 18 June 2003 Nos. [383/03], [384/03], [385/03], [386/03] and [387/03] be removed into the Supreme Court of New South Wales.

Quash the orders made by Sidis DCJ in the proceedings.

Remit the proceedings to the District Court to be dealt with according to law.

Claimant to pay the opponents' costs as agreed or assessed.

Last Modified: 06/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Rehabilitation Act 1996(NSW)

(D) Crimes Act 1900(NSW)s 437, s

Victims Compensation Act 1987(NSW)s 3(1)

Victims Compensation Amendment Act 1998(NSW)

Victims Support and Rehabilitation Act 1996(NSW)

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