Walker v Carey [2009] TASSC 25

6 In order to establish an entitlement to compensation, it was necessary for the applicant to prove:

•

that he was the victim of an offence that involved violence against him; and

•

that he suffered injuries as a result of that offence.

7 In the course of his decision, the Commissioner said:

"The mere fact that the injuries received by the applicant may be consistent with having been caused as a result of an assault does note, [sic] in my view establish on balance that in fact an assault did occur."

The Commissioner's use of the phrase "establish on balance" strongly suggests that the burden of proof that he was applying to the first precondition to the establishment of liability, that is, whether the applicant was the victim of a crime of violence, was proof on the balance of probabilities. I am dubious that this is correct. In the ordinary course, the first precondition is established by proof of the conviction of the offender for the offence. Pursuant to s7(3), that proof is conclusive for the purposes of an application for an award under the Act. The burden of proof that applies to a conviction is beyond reasonable doubt. My preliminary view is that the same burden of proof should be applied when an offender has not been convicted of the offence but it is claimed that the applicant was a victim of an offence involving violence. If the situation was otherwise, subject to an argument as to estoppel, an applicant who could prove on the balance of probabilities that a person had committed an offence, could substantiate a claim under the Act even though that person had been acquitted of the offence. None of this has any bearing on the burden of proof that applies in relation to the second precondition for the establishment of a claim, which is that the applicant suffered injuries as a result of the offence. Section 5(2) expressly provides that the burden of proof as to this issue is on the balance of probabilities.

8 At the outset of the hearing of the originating application, I raised with counsel my concern that the wrong burden of proof had been applied to the issue of whether an offence had been committed. Neither counsel had considered the matter and both counsel requested that I proceed with the hearing on the basis that the applicable burden of proof was on the balance of probabilities. I have done so as it seems to me that this question has no bearing on the grounds of review pursued by the applicant. Having briefly researched the issue, I should say that my concern remains. In In Re E (1976) 14 SASR 179, Jacobs J dealt with a contention that for the purposes of the Criminal Injuries Compensation Act 1969 (SA), s7(4), it was sufficient to establish the commission of an offence on the balance of probabilities. The relevant portion of that provision was:

"If the Court is satisfied that the applicant has sustained injury by reason of the commission of an offence ... it may ...".

Jacobs J rejected the contention and held that the offence had to be established beyond reasonable doubt. In Bartsch v McIlroy and South Australia (1980) 24 SASR 506, Mohr J dealt with a contention that the Criminal Injuries Compensation Act 1977 (SA), s8(1), enabled a claimant for compensation to succeed by proving the commission of an offence on the balance of probabilities. Section 8(1) provided that: "Any fact to be proved by the claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities". Mohr J, at 509, found that the contention ran contrary to the reason and the scheme of the Act and, in effect, held that the burden of proof was beyond reasonable doubt. He also held that "issue estoppel" barred a claim for compensation in relation to an offence in respect of which the offender had been acquitted. The question of the applicable burden of proof was put beyond doubt in South Australia by the insertion of subs(1a) into the Criminal Injuries Compensation Act 1977 (SA), s8, in 1982. Whilst s8(1) of that Act continued to provide that any fact to be proved by a claimant for compensation was sufficiently proved if it was proved on the balance of probabilities, that provision was made subject to subs(1a) which provided that no order for compensation could be made unless the commission of the offence to which the application related had been proved beyond reasonable doubt. As it is not necessary for me to reach a concluded view on the burden of proof that is applicable in this case, I will not take this question any further.

9 Grounds 1 and 2 assert that the Commissioner erred in law. This ground is available pursuant to the Judicial Review Act, s17(2)(f). The error of law alleged relates to a statement in the report from Dr Erasmus dated 22 July 2008 that:

"The extensive injuries to the brain as referred to in the report and addendum are as previously stated consistent with Mr Walker receiving Blunt force trauma to the head arising out of the alleged Assault. It would be unlikely for these to occur if Mr Walker simply tripped and hit his head upon falling to the ground."

On the basis of this evidence from Dr Erasmus, the applicant contends that it would be unlikely for his extensive injuries to have occurred if he simply tripped and hit his head upon falling to the ground, and the Commissioner failed to address this evidence (ground 1) and ignored this evidence (ground 2).

10 Consistent with many decisions on the approach to be taken by a court reviewing the reasons for an administrative decision, I am mindful that the reasons of the decision-maker are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 and 291. However, in this case, nothing has been raised that calls on me to heed those cautionary words. The meaning of the Commissioner's decision is plain on its face. In the second paragraph of his decision, which is set out in par[3] of these reasons, the Commissioner refers to the police who found the applicant, being told by two males that they witnessed the applicant trip on the kerb, fall and hit his head and the Commissioner continues: "Mr Erasmus has expressed the view that it would be unlikely that such an incident could account for the injuries suffered by the applicant. The mere fact that the injuries received by the applicant may be consistent with having been caused as a result of an assault does note, [sic] in my view establish on balance that in fact an assault did occur." In so doing, the Commissioner expressly addressed the evidence in question and did not ignore it. Moreover, he obviously had this evidence in mind in what followed in his decision when he said:

"When admitted to hospital the applicant was noted to be 'clearly intoxicated' and he had a blood alcohol level of 66 mmol/L. This corresponds to a blood alcohol reading in excess of 0.26g/100 ml of blood or 0.26%. This is a significant reading which would have resulted in a marked decrease of the applicant's motor skills. In those circumstances there would be an increased likelihood of falls and a decreased ability to protect himself should there have been a fall or falls. That the injuries were suffered as a result of an assault is clearly one possibility, however with no evidence at all, it is merely supposition."

11 I am accordingly not satisfied that grounds 1 or 2 are established. I should say that these grounds were argued before me in a manner that assumed that there were only two possible explanations for the applicant's injuries; either, an offence (an unlawful assault), or a fall. This assumption is not correct. If the force that caused the applicant's injuries was applied by another person, the possibility that the force was applied in self-defence or by mistake needed to be addressed, as did the remote possibility that a motor vehicle had been involved in his injuries. It is to be remembered that the applicant was found on the pavement beside Collins Street.

12 Grounds 3 and 4 invoke the Judicial Review Act, s17(1)(a), which authorises the review of a decision where there has been a breach of the rules of natural justice. The breaches asserted in support of these grounds involve the assertion that the Commissioner should have excluded, and not taken into account, the following portion of the memo from Detective Constable Rowbottom:

"I spoke to the attending police, Constables Tom GORDON and Justin WOLF, who called the job in via radio (cacs No 00014-08), they observed WALKER unconscious while on mobile patrol. They informed me that they had spoken to two males who witnessed WALKER trip on the kerb and fall and hit his head. They did not get the males names."

The applicant submits that the Commissioner's receipt of this evidence was unfair and a breach of natural justice. As to the quality of the evidence, counsel for the applicant submits that:

•

it was third-hand hearsay;

•

the witnesses were not identified and could not be interviewed or cross-examined by the applicant;

•

the memo did not detail what the witnesses had said; and

•

it was inherently unreliable, inherently unfair, and unable to be challenged.

13 Save for the proposition that the evidence was inherently unfair, I accept the thrust of these submissions insofar as they go to the weight to be given to the evidence. The receipt of the evidence was not inherently unfair. The applicant was well aware of the evidence. He in fact provided a copy of the memo containing it to the Commissioner.

14 As to the Commissioner's receipt of this evidence, the Act, s7(2), provides:

"(2) In the consideration of an application for an award, the Commissioner is entitled to inform himself as he sees fit."

There are no other rules of evidence in the Act, and no general exclusionary rules of evidence apply to the Commissioner. In these circumstances, the Commissioner had no entitlement to exclude the evidence. As noted in Cross on Evidence, 7th Australian edition, LexisNexis Butterworths, 2004, par11120, at 352:

"It is interesting to note in proceedings where the general exclusionary rules of evidence do not apply, for example in some tribunals, there is no room for an exclusionary discretion. Where statute has sought to extend the range of material available to the tribunal, it is not for the tribunal to cut it down as it chooses by the exercise of any such discretion. Rosedale Mouldings Ltd v Sibley [1980] ICR 816 at 822."

15 In R v Public Vehicles Licensing Appeal Tribunal ex parte: Transport Commission, Serial No A41/1971, Burbury CJ said the following with reference to a decision of the chairman of the tribunal in question to rule relevant evidence inadmissible on the grounds that it was hearsay:

"It was assumed in argument that the Tribunal is not bound by the rules of evidence. That assumption is I think correct. The Tribunal is not a Court and is therefore not bound by the rules of evidence. Like a Royal Commission or a Board of Inquiry or any statutory tribunal not expressly made subject to the rules of evidence it may base its decision on any material which appears to it to have probative value. It is bound to follow the rules of natural justice but the technical rules of evidence are not part of the rules of natural justice. I need do no more than cite the valuable judgment of Diplock LJ in R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB p456 where at p488 the learned Lord Justice said:

'These technical rules of evidence however, form no part of the rules of natural justice. The requirement that a person exercising quasi judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue'."

16 See also Martin v Medical Complaints Tribunal [2006] TASSC 73; (2006) 15 Tas R 413 at par[14] where I said:

"That a tribunal is not bound by the rules of evidence means that it may have regard to evidence that is logically probative regardless of whether it is legally admissible under the rules of evidence; R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 and Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, Brennan J at 493. It is perfectly consistent with concepts of procedural fairness to apply a provision that a tribunal is not bound by the rules of evidence so as to admit evidence that may not be legally admissible but is logically probative; Bowen-James v Walton NSWCA 5 August 1991 unreported at 6 and Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82 at 90. This does not mean that the rules of evidence are to be ignored as being of no account; Bott (supra) at 256 and Pochi (supra) at 492. That a rule of evidence would apply to exclude otherwise logically probative evidence may be a guide as to its reliability and weight."

17 I am unpersuaded that there was any unfairness or breach of the rules of natural justice in the manner in which the Commissioner received and dealt with the evidence in question. He did not give it too much weight. He would have erred had he excluded it. Even in its absence, the possibility that the applicant's injuries were caused by a fall had to be considered. That possibility was raised by the evidence of the extent of the applicant's intoxication. I reject grounds 3 and 4.