New South Wales District Court CITATION : Everson v Victims Compensation Fund Corporation [2000] NSWDC 3 TRIBUNAL : Victims Compensation Tribunal PARTIES : Kerry Everson Victims Compensation Fund Corporation FILE NUMBER(S) : 6381 of 2000 CORAM: CATCHWORDS: leave - s29(2) :- balance of probabilities leave - s29(2) :- standard of proof LEGISLATION CITED: Victims Compensation Act 1996 Workers Compensation Act Donnelly v Victims Compensation Fund Corporation and Anor 82 ACR; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR ; Fleming v White; CASES CITED: Gamble v Hines 1982 ACR 448; Rejfek v McElroy 112 CLR 517; Briginshaw v Briginshaw 60 CLR ; Regina v PAK DATES OF HEARING: 19/10/00 EX TEMPORE 19 October 2000 JUDGMENT DATE : JUDGMENT: DCZ1294 SLB-K1 .19/10/00 8 HIS HONOUR: This is an application for leave to appeal against the decision of Mr Gabb sitting as a member of the Victim's Compensation Tribunal. It comes to this court by way of notice of motion. I grant an extension of time to appeal this court pursuant to order 1. sought in the notice of motion dated 16 August 2000. I grant leave to appeal and I uphold the appeal. I will now give my reasons. While it is true that the policy of the Victim's Compensation Act is one of restricting the granting of leave to appeal and hearing of appeals, to clear cases of error of law, this seems to me to be such a case. The reason I say that with such conviction is that it is clear to me from a reading of the judgment of the learned magistrate, Mr Gabb, who sat as a member of the tribunal, that he mistook his task in the following way. He was required to decide the issues before him according to a certain standard of proof. That standard of proof is proof on the balance of probabilities. It seems to me that he did not abide by the requirement imposed upon him to do that. I was referred by Mr Burchett, who appears for the respondent, to two cases in particular. The first is Donnelly v Victim's Compensation Fund Corporation and Anor (82 ACR p 55). In that case the majority, Handley and Sheller JJA (Kirby ACJ dissenting), found that it had no jurisdiction to review the decision of Luland DCJ for error of fact finding, or for non-legal error in the exercise of judicial discretion. The claimant did not contend that on their face the Judge's reasons contained an error of law. The court held that the claimants' submissions did not raise a question of law, and of course I am bound by that decision. That decision echoes in some ways what was said in the well known case of Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR p 139. This was a decision in relation to the Worker's Compensation Act . As Glass J.A. explained at p 156. "...alleged insufficiency of evidence to prove a fact always raises a question of law, but alleged insufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted... The party saddled with the onus...cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence... The determination of facts by a reasoning process marred though it may be by patent error illogically or perversity, will...never be vulnerable to attack as an error of law." Bearing those two cases in mind, I nevertheless have concluded that Mr Gabb, the magistrate constituting the Tribunal, erred. In the cases of Fleming v White, and Gamble v Hiles , decisions of the New South Wales Court of Criminal Appeal, (1982 ACR 448) Street CJ said at p 452, stating a canon of law, long known in the common law system, the following, referring to several cases: "the statute being remedial of a grievance...ought, according to the general rule applicable to such statutes to be construed liberally, so as to afford the utmost relief which the fair meaning of its language will allow". Later he lent strength to that canon by confirming a further statement of their lordships in the Privy Council, that like all such acts it should be construed beneficially. I have concluded, as I said earlier, that his Worship was wrong in law. This is so, because in my view he did not apply the standard of proof applicable in such cases. This is demonstrable from the reasons he gave for his appeal determination. He spoke at p4 as follows: "It is true that the applicant need only satisfy this Tribunal of the allegation on the balance of probabilities, whereas the criminal charges had to be considered upon the onus of proof beyond reasonable doubt. Nevertheless the fact is that the applicant still bears the onus of proof before a compensation assessor and this Tribunal". Thus far His Worship was correct. He went on to say: "It is a serious matter indeed from the personal point of view of an alleged offender for a court or Tribunal to make a public finding even if only on the civil standard that he or she committed criminal offences, and any court or tribunal so finding must certainly be satisfied it was more probable than not that the offences occurred". So far, it could be said that his Worship has not erred. He went on to say: "Applying the lesser standard of proof of the balance of probabilities does not mean that the applicant's allegations should simply be preferred to the denials of the alleged offender. The applicant still bears the onus of proving the allegations, although the onus is less than in a criminal proceeding". And he went on to say: "That onus has not been discharged because on all the evidence before this Tribunal I am just unable to conclude that the applicant's allegations are more probable than the alleged offender's denials". On the face of his judgment, at least that part of it on p 4, I do not assert that his Worship was not aware of the obligation placed upon him to come to a finding on the balance of probabilities. However it seems to me that reading his judgment as a whole, his Worship offended against fundamental principle. He ascended from the civil standard to some intermediate or higher one, approaching very close to if not adopting, the very standard of proof which was not applicable, namely proof beyond reasonable doubt. In my view there are but two standards of proof: proof beyond reasonable doubt, and proof on the balance of probabilities. I was referred to the case of Rejfek v McElroy (112 DCZ1294 SLB-J2 CLR 517 at 521). The learned authors of Cross on evidence, 3rd Australian edition quoted the court in that cases as follows: "The standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity of otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words, it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied, and has not with respect to any matter in issue in such a proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge". The learned Authors of Cross commenced on Briginshaw v Briginshaw (60 CLR per Latham CJ) as follows: "The standard of proof required by a cautious and reasonable tribunal will naturally vary with the seriousness or importance of the issue. 'Men will pronounce without hesitation that a person owes another $100 on evidence on which they certainly would not hang him, yet all the rules of law applying to one case apply to the other and the processes are the same". Here we have a situation where his Worship was talking about the findings of the Court of Criminal Appeal of this State in the case Regina v PAK , an appeal from the District Court: (Gibson DCJ). Their Honours held that there were a number of inconsistencies in the appellant's case, he being a person who was alleged, as I understand it, to have assaulted a five year old child. At p 11 Dunford J said there were a number of inconsistencies in the appellant's case in relation to one of the counts. That is a far cry from finding as his Worship did, sitting as the Tribunal, that the Court of Criminal Appeal had said that there was no credibility in what the complainant had alleged. A great deal of what his Worship said in his reasons, in my view, are irrelevant. However one of the things he did say is glaring in its inapplicability to the decision he was called upon to make. He spoke in his reasons, about psychologists and psychiatrists being in a position where they carry very little weight in corroborating an alleged act of violence. Of course an act of violence must be found before the Tribunal has any jurisdiction, but it was in my view wrong of his Worship to talk in general about psychiatrists and psychologists, and their evidence having very little weight. What his Worship should have done and what it seems he did not do was talk about, and apply his mind to the psychological and/or psychiatric evidence in the case in point, and give that evidence such weight as he reckoned it was worth. In addition it seems to me that it is irrelevant and an error of law, for his Worship to have taken into account the fact that the Director of Public Prosecutions declined to proceed with a new trial, after the Court of Criminal Appeal had dealt with the appeal of PAK. That is in my view, a matter which has no probative value. It is however, something that his Worship obviously took into account. That the Director of Public Prosecutions reported that he declined to proceed with a new trial, because there was no reasonable prospect of conviction on the third count, and accordingly the prospect of conviction on the second count was substantially diminished in light of the fresh evidence available, in my view was irrelevant to his Worship's decision and should not have been taken into account. His Worship's task was to decide whether or not on the balance of probabilities there should be compensation for a victim of a crime of violence. His Worship dismissed the appeal against the decision of a compensation assessor. The compensation assessor dismissed the application because he did not find the alleged act of violence established. With great respect it is not to the point to argue as Mr Burchett did pursuant to s 29, subs (2), that an award of statutory compensation must not be made unless the compensation assessor is satisfied on the balance of probabilities that the person to whom the application for that compensation relates (A) as a primary victim, secondary victim or family victim of an act of violence. That is the very issue His Worship Mr Gabb had to decide on appeal. The application for leave to appeal and the appeal itself are based on the proposition that the Tribunal did not make an award based on the balance of probabilities. To say that that section provides as it does, does not address the point of whether or not Mr Gabb addressed his mind at the requisite standard to the question in point. I say all this bearing in mind as I have already said, the decisions in Donnelly and Azzopardi. I find that the tenor of his Worship's reasons is fundamentally flawed, and while he spoke about the balance of probabilities, he approached this matter as though the onus, which is undoubtedly on the appellant applicant, was not an onus which would be discharged if it were proved on the balance of probabilities; the question is: Is it more probable than not that the appellant suffered injury at the hands of the respondent as a result of a crime committed by him. In my view his Worship based his decision on the standard of proof beyond reasonable doubt, or at the very least some intermediate standard which does not exist. This to me indicates that there is a question of law. The leave application is granted, and the appeal is upheld. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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