Victims Compensation Tribunal

The Victims Compensation Tribunal of New South Wales (the Tribunal)is a discrete and specialist Tribunal established to determine the amounts that may be awarded to victims of crime for personal injury in New South Wales, a state of Australia. The Tribunal was originally established under the Victims Compensation Act 1987 and continues to operate under the Victims Support and Rehabilitation Act 1996. The purpose of the Tribunal is to provide a sensitive, accessible and efficient facility to process applications for counseling and victims compensation and to recover compensation monies from convicted offenders.

The Tribunal consists of:

• Magistrates (including the Chairperson) who determine appeals against determinations and make orders for the recovery of monies from convicted offenders

• Compensation Assessors who make determinations in compensation claims, consider leave to apply out of time and approve counseling applications

• Tribunal staff who provide administrative support in the processing and determination of compensation and counseling claims, appeals and the restitution process.

The Tribunal is part of Victims Services. Victims Services, part of the Department of Justice and Attorney General in New South Wales, helps victims of crime access services and entitlements to assist in their recovery. Victims Services also provides support to the Victims Advisory Board. Victims Services also consists of the Policy and Service Delivery Unit and Families and Friends of the Missing Persons Unit.

Background to the Establishment of the Tribunal

Prior to the establishment of the tribunal, there were two ways victims could obtain compensation for personal injury. One, they could sue at common law for injuries sustained as the result of a criminal act. All courts which have civil jurisdiction, such as the Supreme Court of New South Wales, the District Court of New South Wales, or the Local Court of New South Wales can hear and determine a claim for personal injury. Under this method both victims and defendants are required to give oral evidence and be cross examined in order to assess their individual veracity and the true worth of their claim. Strict rules of evidence apply and the claim must be proven on the civil standard, the balance of probabilities.

Two, Section 437 of the Crimes Act 1900 [1] also allowed a criminal court to make an order for criminal injuries compensation. Under this method Trial Judges who had heard all the evidence during the criminal trial would then turn their mind to the question of compensation. When an order was made, the Director General of the Department of the Attorney General and of Justice was empowered to make a payment out of government funds to the victim. The Crimes Act also provided that the Attorney General could take steps to recover any payment made from the criminal concerned.

In 1987 Labor Premier Barrie Unsworth repealed Section 437 on the creation of the first tribunal. Prior to this event, on the 23 November 1987 John Dowd then Leader of the NSW State Opposition said in Parliament:

This scheme is a straight pork barrelling exercise by the Government, which is saying to the community, 'Here you are, you can get your compensation straight away with this new scheme'. It has all the earmarks of a pre-election exercise, a very cynical exercise I notice that Labor members find it very amusing to win popularity in the troublesome law and order area. Opposition members do not find this issue amusing and I do not think the community does...The Law Society shared my concern when it made submissions some time ago about the problem of setting up a new tribunal. The proceedings before the Tribunal will be informal but there is quite a deal of machinery on how those hearings will take place...At present the judge who hears the proceedings has the opportunity to assess the witnesses and their credibility and make a decision on whether their conduct contributed to the injuries sustained...The Opposition is concerned that this measure will set up a procedure of a hearing before a new magistrate. That magistrate will have to hear the facts to reach an assessment. Every time one of these simplistic schemes is introduced a bigger monster is created than the one sought to be overcome. It is the view of the Opposition that if the procedure to permit the calling of evidence at the time of hearing or shortly thereafter had been altered by the Judge who heard the proceedings, that could have been carried out fairly quickly without the setting up of new machinery...Because criminal proceedings are instituted, it does not mean that the accused is guilty. The making of an allegation is not proof of an accused's guilt...People are capable of making and do make, false allegations. Not only do juries find people not guilty but in some cases they find them innocent because they disbelieve the complainant or the person who had brought the proceedings."

The First Tribunal

The first tribunal was established by the Victims Compensation Act 1987 [2]. It provided that a magistrate of the Local Court of New South Wales could constitute the tribunal. The first Tribunal differed to the way the tribunal now works. Applications for compensation were determined by a magistrate. An appeal from the magistrate could be made to the District Court.

For more information about the history of victims compensation and victims rights legislation in New South Wales refer to the Victims Services website:[2]

Current Procedure

A number of amendments have been made to the legislation, both to improve the benefits and rights of victims and to ensure the viability of the Victims Compensation Fund. The Victims Compensation Act 1987 was replaced by the Victims Compensation Act 1996 (now known as the Victims Support and Rehabilitation Act 1996) and in addition the Victims Rights Act 1996 was enacted.

The first tribunal ceased to exist when the Victims Support and Rehabilitation Act 1996 commenced. The latter act continued the existence of the old tribunal under the new act. The primary change was the shift to a tariff approach of awarding compensation for injury, replacing the previous discretionary approach. The new scheme appended a schedule listing a range of body parts and particular harms to those body party, specifying amounts for each injury depending on their perceived seriousness. The revamped scheme also introduced an approved counseling scheme providing 20 hours of free counseling to victims.

The Act was further amended in 1998 effective from 15 February and 7 April 1999 increasing the Director’s power to recover monies from convicted offenders and altering the table of compensable injuries. More recently, amendments to the current legislation, the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996, were made in 2010.

Significant changes have been made to the former Victims Compensation Act 1996 as a result of the Victims Compensation Amendment Act 2000 and the Victims Compensation Amendment (Compensable Injuries) Regulation 2000. The 2000 amendments increased the threshold for statutory compensation and to limit victims who could apply for certain compensable injuries. The Act is now titled the Victims Support and Rehabilitation Act 1996.

The Victims Support and Rehabilitation Act 1996 was further amended in 2006, 2009 and 2010. The amendments in 2006 include the establishment of a Victims Assistance Scheme to further enhance the rehabilitation and support available to victims of crime. The Scheme reimburses certain expenses incurred as a result of an act of violence where the injuries sustained fall below the statutory threshold. The amendments in 2010 expanded the expenses that can be claimed under the Victims Assistance Scheme and expanded the Approved Counseling Scheme.

Structure

The present tribunal is constituted under section 59 of the Victims Support and Rehabilitation Act 1996 (NSW). It came into existence on 2 April 1997, although transitional arrangements in the act provide that the present tribunal is a continuation of the former tribunal.

A magistrate can be appointed as a member of the tribunal. One of the members can be appointed by the Governor of New South Wales as the Chairperson of the tribunal. Assessors may also be appointed by the Director-General of the Attorney General's Department to determine applications.

Eligibility for victims compensation

A victim who has been injured by an act of violence, such as assault, armed robbery, domestic violence or sexual assault, that took place in New South Wales (NSW), may be eligible for an award of compensation between $7,500 and $50,000. Victims of violent crime may also claim for counseling and for certain expenses incurred as a result of the act of violence. The Tribunal does not allow future expenses.

Procedure

A person who claims to be a victim of crime may make an application for victims compensation to the tribunal. Potential recipients of compensation are one, the primary victim; two, the secondary victim and three, family victims. Applications must be lodged within two years of the alleged act of violence or in the case of a family victim within two years of the death of the primary victim. An application lodged out of time can be accepted if the applicant establishes there are "good reasons to do so". Leave is usually given in cases of sexual assault,domestic violence or child abuse.

The tribunal lists the application for assessment before an Assessor who can require the applicant to undergo an examination by a specific doctor or psychologist or other health professional. The cost of such examination is born by the Compensation Fund. Interim awards can be made. As the tribunal does not require either the alleged victim or the accused person to be brought before it, the assessor deals with the application in chambers and makes a determination on the evidence and materials that are before it. Pursuant to s.29(2) of the present Act if the Tribunal accepts that an act of violence has taken place on the civil standard, the balance of probabilities, and that damage has occurred, it then determines the amount of compensation that will be awarded to the victim or alleged victim of crime.

Although this body has been given the term "Tribunal" by the NSW government, it does not adopt the adversarial method of fact-finding common throughout all other courts and tribunals in Australia. This is a direct result of a government "policy" since its inception in 1989 that the Tribunal is NOT to notify nominated defendants that an application has been made for compensation in which their name has been provided on the application form as the perpetrator. If the nominated defendant has never been brought before a criminal court the Tribunal is not provided with any evidence that such persons may have been able to provide to suggest that an award should not be made. If the nominated defendant has been charged by police but the charges were dismissed at Committal or found not guilty at trial on the criminal standard, beyond a reasonable doubt, the Tribunal will have access to the various court transcripts. However, the Tribunal will not have access to any other evidence that a nominated defendant may be able to produce. Nor will the Tribunal have the opportunity to visually access the veracity of either the nominated defendant nor the alleged victim as neither are required to appear before it. Unlike the normal adversarial methods adopted in common law courts found throughout Australia, the United Kingdom, Canada, the US and New Zealand this policy deliberately excludes evidence that could weigh against the person making the application. In a sense the tribunal is "blind" to the existence of such evidence and can only make a decision on the material that is before it.

Is the tribunal inquisitorial in nature? Pursuant to s.65A of the "Act" an assessor may "make such inquiries and undertake such investigations as the assessor considers necessary". Given the Attorney General's policy not to notify nominated defendants it is reasonable to assume that Tribunal assessors do not consider that nominated defendants can provide any evidence of value to the Tribunal. Such procedure has no relationship to the inquisitorial procedure adopted in civil law countries such as found in Europe in which all available evidence is provided to the Court. In France, this collected evidence is called the "Dossier". Unlike adversarial systems, inquisitorial systems are geared towards finding the "truth".

Appeal

Pursuant to s.36 of the present Act a victim dissatisfied with the determination may appeal to a member of the tribunal. The appeal is held in open court and should be made within three months of the initial determination, although an extension is possible under "exceptional circumstances". The victim and his or her legal representative can attend the hearing and adduce evidence and make submissions. There is also a legal representative for the Victims Compensation Fund who appears to resist the application. The tribunal is not bound by the rules of evidence and can inform itself in such manner as it thinks fit.The hearings are conducted with as little formality and legal technicality and form as the circumstances of the case permit. Without the consent of the Tribunal, publication of identifying details about witnesses, parties and nominated defendants is not permitted.

Due to the policy of Victims Services not to notify nominated defendants, such persons are not a party to the proceedings and consequently are not notified of the Appeal. Again, any evidence that the nominated defendant may have in his or her possession to suggest that the award should not be made is not produced to the Tribunal. As with Assessor hearings the Tribunal hearing is "blind" to the potential existence of such material. At the conclusion of the hearing, the Tribunal members makes a decision on the appeal. Nominated defendants also have no right under the NSW Freedom of Information Act, the NSW Privacy and Personal Information Act or the Victims Charter to apply for a copy of any documents including the judgment in which their name was mentioned.[3]

While an appeal to a member of the tribunal is generally final, pursuant to s.39 of the act there is a right of appeal to the District Court on a point of law. Such an appeal should be lodged within three months of the day the notice of the tribunal was served on the applicant, although further time may be allowed under 'exceptional circumstances'.

Recovery of Compensation Awards

Convicted Persons

Pursuant to s.46 of the present Act nominated defendants who have been convicted at Trial in the criminal courts or pleaded guilty are required to repay the compensation award to the Victims Compensation Fund. The Director may make a provisional order for restitution against the person so convicted and must cause notice of that provisional order to be served on the convicted person in accordance with the rules. Conviction includes an order under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (formerly section 556A of the Crimes Act 1900) and (except in Part 4) an order made under section 33(1)(b)(g) of the Children (Criminal Proceedings) Act 1987.

Under the Act convicted persons have the right to appeal against a restitution order from the Tribunal to repay the State the compensation award. The notice of objection must be lodged within 28 days of receipt of the order of recovery. As with the compensation application hearings, these appeals are also heard in chambers, with the Accessor sitting on one side of the desk and the perpetrator sitting on the other side, often with no legal representation. Pursuant to s.46 of the "Act" the Tribunal may confirm a provisional order if satisfied that the defendant has been convicted of an offense arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. When it confirms a provisional order, the Tribunal may reduce the amount to be paid under the provisional order having regard to:

• the financial means of the defendant,
• such other matters as are in the opinion of the Tribunal relevant to the determination.

Recovery proceedings against convicted persons must be determined in accordance with the rules of evidence and in accordance with the practice and procedure of Local Courts exercising civil jurisdiction in the same way as the determination by a Local Court of an action commenced by way of an ordinary statement of claim within the meaning of the Local Court (Civil Claims) Act 1970 section 52).

An order for restitution is taken to be a judgment of the Local Court in proceedings on a statement of claim and may be enforced accordingly (section 54).Pursuant to s.56 of the "Act" the Tribunal on sufficient cause shown may set aside an order for restitution and may stay the execution of judgment pending the determination of any proceedings to set aside the order.

The 1998 amendments to the Act inserted section 46A which enables the Director to issue a provisional order for restitution against a person other than the convicted person in circumstances where the person against whom a provisional order for restitution had been made under section 46 had disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under the Act. See section 49(2A) as to the confirmation of a provisional order made under section 46A.

Unconvicted Persons

Statutory compensation may be paid to victims of an act of violence in circumstances where there is no identifiable offender, where the charge against the alleged offender is dismissed or found not guilty at trial. In those cases where the offender is either unidentified or criminal proceedings have resulted in acquittal or dismissal, payments of statutory compensation cannot be the subject of restitution action.

Fraudulent Awards

Pursuant to s.44 of the present Act a person convicted of a fraudulent act on the Tribunal may be required to repay the compensation award. Despite many complaints having been made to NSW Police Force and to politicians over the years not one person has ever been charged let alone convicted of Fraud on this Tribunal. Mr. Peter Breen, a former member of the NSW Legislative Council received many such complaints whilst he was in office.

High Probability of Fraudulent Claims

Due to the procedures used by this Tribunal there is a high probability that a substantial number of compensation awards have been made to fraudulent applicants. One, as neither the alleged victim or the alleged perpetrator attends the Tribunal at the time the award is made, no assessment of their credibility or veracity can be made by the assessor. Two, as alleged perpetrators are not parties to the compensation process, they are unable to provide evidence to the Tribunal that the award should not be made. It is submitted that any reasonable person given these facts would conclude that a Tribunal of Fact that does not permit the hearing of all potential evidence, must inevitably make mistakes. A number of cases are presented for the reader's consideration.

Case A The John Marsden Defamation Trial and Subsequent Victim Compensation Payment

One such case was the decision of 27 October 2000 of District Court Judge Correy to award $135,000 to a victim (hereafter referred to as Mr GB.) who alleged homosexual child sexual assault on five persons including the now deceased solicitor John Marsden a former President of the NSW Law Society. A Supreme Court jury presided over by Justice David Levine heard his allegations against Mr. Marsden, along with many other alleged victims in a defamation case brought by Mr. Marsden against Channel 7 who had aired the allegations. After hearing all the evidence over a two year period Justice Levine found for Mr. Marsden and awarded six million dollars in costs and half a million dollars in damages. In relation to the evidence of Mr GB, Justice Levine, had this to say. "(Mr GB) in the end is a witness in whom I can have no confidence at all as to his veracity. He was a very fragile witness for the defendant to call, as it turned out, on the issue of justification. I do not and cannot, on his evidence, come to the conclusion that more probably than not the events the defendant asserts took place in fact took place. "Mr GB was an unbelievable witness".(Marsden v Amalgamated Television Services Pty Limited [2001] NSWSC 510 [Wednesday 27 June 2001] para 1246). An Appeal to the NSW Court of Appeal by the Defendant, Channel 7 was dismissed and a cross appeal by Mr. Marsden for increased damages was upheld.[4]

On October 27, 2000, following the completion of evidence in the Marsden defamation action against Channel 7, but before the Judgment, Judge Coorey of the NSW District Court upheld appeals from decisions of the NSW Victims Compensation Tribunal which had the previous December dismissed applications by Mr GB for compensation. Judge Coorey overturned a decision of Magistrate Jacqueline Milledge, sitting as the Victims Compensation Tribunal and was satisfied on the balance of probabilities that compensable acts of violence by five men, including John Marsden had taken place against Mr GB. The claim was largely determined on the basis of psychiatric reports written by Dr Skinner and Dr Quadrio. While Magistrate Milledge had preferred Dr. Skinner’s report over Dr Quadrio, Judge Coorey reversed his preference. Magistrate Milledge said:

How can he attribute his disorder to any of them specifically, in preference to the hundred that either went before, during or since? Therefore it cannot be shown that any link exists between the alleged offenders and his alleged injury.

Judge Coorey however, rejected the reasoning of the Magistrate and said:

Even if the appellant came to court with the name of two hundred offenders that assaulted him it seems to me that does not eliminate the fact that the five offenders in these appeals seriously assaulted the appellant and the appellant is clearly a victim of the criminal acts of these offenders”

Mr GB was awarded a grand total of $142,835.00 made up of $100,000 for pain and suffering, $35,000 for economic loss and another $7,835 in costs and disbursements. As neither Magistrate Milledge nor Judge Coorey heard or received evidence from the nominated defendant John Marsden, their decision did not take into account any of the evidence which Mr. Marsden produced to the Supreme Court Defamation trial. Similarly, neither Magistrate Milledge nor Judge Correy heard evidence in chief or cross-examination of Mr GB.

This was not the end of the matter as other alleged “victims” made applications for Victims Compensation. These included seven other 'discredited' witnesses from the Marsden defamation trial including Jason Lilburn, none of whose allegations had been accepted by Justice Levine. Mr. Paul Fraser also commenced a common law action against Mr. Marsden on or about 29 May 1997 but despite being successful in overcoming the Limitations Act (Fraser v Marsden [2000] NSWSC 416 (22 May 2000) later withdrew his action in favor of an application to the NSW Victims Compensation Tribunal.

On the 27 February 2001 Senator Bill Heffernan, then NSW Parliamentary Secretary to Federal Cabinet said the following in the Australian Commonwealth Parliament:

"On behalf of the taxpayers of NSW, I would like to draw the Senate's attention to the web site www.justinian.com.au and to an article entitled "Victim Compensation for alleged underage sex assaults by John Marsden". This matter concerns an application to the Victims Compensation Board by a victim, Mr GB in claims 97/30987, 97/30988, 97/30990, 97/30998 and 97/31003. These claims were rejected and the reasons were set out over the signature of the authorized magistrate J.M. Millege on 10 December 1999...I further note that, in a judgment by Judge Coorey of the District Court of NSW criminal jurisdiction, in a decision reserved on 6 September 2000 and handed down on 27 October 2000, the taxpayers of NSW paid out $135,000 in compensation for successful appeals...I would like to raise five questions against the background of a recent high profile defamation action by Mr. John Marsden in the Supreme Court of NSW (1) Is this compensation payment awarded by Judge Correy a fraud on the taxpayers of NSW, (2) will the Crown take steps to recover this compensation payout from the former law society president, (3) is the silence and inaction by the Law Society of NSW a display of tacit support for its former president, (4) is the legal and judicial system in NSW hopelessly compromised and (5) is the law simply an ass?" [5]

These comments were made by Senator Heffernan BEFORE the Supreme Court Judgment in which Mr GB was called “a liar”, “an unbelievable witnesses” and, “a witness I can have no confidence at all as to his veracity” by the Trial Judge, His Honor Justice Levine. Despite this finding the NSW Labor Government has never charged Mr GB with fraud on the Tribunal.

Case B

In 1997 in Kandos, New South Wales a woman of approximately 50 years of age engaged in a sexual affair with a 19 year old lad. On one occasion the middle-aged lady complained to the local Police that her young lover had raped her. The young man was duly charged. The only evidence of the alleged rape was the allegation by the middle-aged lady. After talking to an elderly gentlemen in the town who told the boy that he would be found guilty and would become the "plaything" of some heavy in goal, the boy drove to Mt Pleasant Lookout where he committed suicide by asphyxiation. The middle-aged lady made application to the NSW Victims Compensation Tribunal and was awarded $50,000.00. The only evidence of the alleged sexual assault was a statement by the Lady supported by medical evidence of alleged damage by a health provider. No physical evidence was made available to NSW Police.

Case C Barry Catt (husband of Roseanne Catt)

Roseanne Catt was found guilty of trying to kill her husband in 1991. She was sentenced to 12 years imprisonment, but served 10 years, for possessing a revolver and assaulting, stabbing, attempting to poison and planning to murder her ex-husband Barry Catt.

Following her conviction, Barry Catt and his friend Adrian Newell made an application to the NSW Victims Compensation Tribunal and received an award of $89,000.00. During those ten years, Roseanne continued to protest her innocence. She maintained that she was framed as a result of a conspiracy between her ex-husband and Peter Thomas, the detective who investigated the case. Following an appeal to the NSW Court of Criminal Appeal, the matter was referred to the District Court for a judgment on remitter. The matter returned to the Court of Appeal where the appellant was acquitted of one charge, had her appeals dismissed with respect to two of the charges (both very serious assaults on Barry Catt by the appellant) and retrials ordered with respect to the remaining matters. [6][7]

Ms Catt then commenced proceedings for a common law claim of compensation.[8][9]

Some commentators thought that in view of the finding of the NSW Court of Criminal Appeal, it would have been reasonable for the NSW Labor Government to revisit the award of Victims Compensation to Barry Catt.[10]

Mr. Peter Breen, an independent Member of the NSW Parliament brought Ms Catt's case to the attention of the Parliament [11] and the issue of Victims Compensation to Barry Catt [12] Yet, there is no evidence to show that this compensation payment has never been formally reviewed.

In 2010 the case took a bizarre twist when following her acquittal Ms Catt received a restitution claim from the NSW Victims Compensation Tribunal.[13]

Case D The David Koziwoda Case

It was reported by the Daily Telegraph on the 19 December 1997 that David Koziwoda received $3,000 from the NSW Victims Compensation Tribunal. Mr. Koziwoda lodged a successful compensation bid after he gave evidence as a Crown witness at a Sydney murder trial. But after the trial the senior investigating detective wrote to the Director of Public Prosecutions in February asking that he give consideration to prosecuting Mr Koziwoda as an accessory to murder. The detective asked the DPP to consider the "multiplicity" of Mr Koziwoda's evidence during police interviews and court hearings.In July, the DPP notified police they would not institute proceedings. Detective Bob Mills also wrote to the Victims Compensation Tribunal advising them that Mr Koziwoda's actions on the night of the death were technically that of an accessory to murder.

Revelations that Mr Koziwoda received a victim payout after the murder of Matthew Walsh at Bellevue Hill on September 28, 1994, have angered Mr Walsh's parents Tom and Carol and the Homicide Victims Support Group. Mr Walsh was killed at the Bellevue Hill flat he shared with three others. His flatmate and close friend Craig Isaacs was found guilty of his manslaughter and sentenced to a maximum of nine years' jail. Mr Walsh's body, with fatal head injuries, was found in the back of his work van abandoned in a Kings Cross laneway.

At Isaacs' trial in the NSW Supreme Court, Mr Koziwoda gave evidence for the prosecution where he told of helping Isaacs carry Mr Walsh's body downstairs to a van after the attack. Isaacs then drove off with the body and Mr Koziwoda told the court he went upstairs and cleaned up blood. The next evening Mr Koziwoda went to police and made a statement about the incident.

Mr Walsh's parents were shocked to find out about Mr Koziwoda's compensation claim when they made their own claim. "To me it is totally wrong, it is against everything I believe in," Mr Walsh said.

Case E The Mamdouh Habib Case (2009)

Mr Habib witnessed a shooting in 2006, after picking his son up from work at 11 pm. Driving home through the western Sydney suburb of Granville, Mr Habib heard gunshots and saw a man fall to the ground in front of his car.He immediately called police, got out of his car and saw two men lying on the road. Police said they arrested Mr Habib after arriving at the scene because he refused to provide identification.

However, Mr Habib told the tribunal he had offered to provide detailed information the next day because his son was exhausted, and had been fetching his driver's license from his car when a policeman said: “Put this terrorist in the wagon.” The 59-year-old said he was thrown to the ground, punched, kicked and sprayed, then taken to nearby Parramatta police station, locked in a cell until after 3 am and questioned until 5am.

The tribunal chairman, Brian Lulham, said Mr Habib was a credible witness, whose account of events was consistent with other witnesses. In contrast, Mr Lulham said a detective inspector, who cannot be named, prepared a report “calculated to denigrate the appellant’s character”. “The report in that regard is not impartial and exhibits considerable bias against the appellant,” Mr Lulham wrote.

Finding Mr Habib had been the victim of an act of violence that made him eligible for compensation, Mr Lulham said: “I am satisfied on the balance of probabilities that unnamed police officers did use excessive force … before any physical resistance by the appellant.” It is understood the tribunal will finalize the matter, including compensation, in October.[14][15]

Articles

1. Shock Horror Scams and Scoundrels "Compo for robbers. How the victims of crime compensation scheme is rorted"

2. "The Reputation rapists at large"

The Standard of Proof - The Balance of Probabilities (Briginshaw Vs NSW Statutory Standard)

The standard of proof imposed by The Victims Compensation Act 1996, is the civil standard "on the balance of probabilities". Section 29 (2) of the Victims Compensation Act 1996 states:

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) is primary victim, secondary victim or family victim of an act of violence,and

(b) is eligible to receive the amount of compensation provided by the award."

Pursuant to s.140 of the Evidence Act 1995 (NSW):

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defense, and (b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

In Case A above, the question for Victims Services is to explain to the people of NSW how two NSW Courts reached opposite conclusions on the same set of allegations using the civil standard, the balance of probabilities. How could the evidence of an alleged victim be described as “a liar”, “unbelievable” and “a witness I can have no confidence at all as to his veracity” by a Supreme Court Justice, yet be awarded a substantial grant of public money by a District Court Judge on the same allegation? Is the legal and judicial system of NSW hopelessly compromised or is the law simply an ass as Senator Heffernan opinioned in the Federal Parliament? The answer lies in a comparison of the fact-finding process utilized under the Victims Compensation legislation as opposed to that found in a common law civil case.

No authority has established that S.140 of the Evidence Act (NSW) does otherwise than reflect the common law. The principles are well known. The starting point in any investigation of this issue must begin with the definition of the civil standard as determined by the High Court of Australia Briginshaw v Briginshaw (1938) 60 CLR 33613 and the following passage from the judgment of Dixon J at 361-2:

At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded... The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or Established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

The Briginshaw standard is the standard applicable to all Common law courts throughout NSW and the rest of Australia.The above passage from Briginshaw makes it clear that under common law procedures a Tribunal of Fact must be persuaded as to the truth of the allegation. In a common law civil case, the finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things that are alleged by an applicant or a plaintiff. In finding facts, the arbitrator or jury is restricted to the evidence laid before them supplemented by facts commonly known that need no proof. Does the evidence establish on the balance of probabilities, what the applicant contends it does, namely the substantial truth of the allegations made in the application for compensation. As the NSW Victims Compensation Tribunal does not hear from either the alleged victim or the nominated defendant or allow an opportunity for the nominated defendant or any other interested parties to place evidence before it, I submit that it cannot determine with any degree of certainty as to the probability of any given fact. That is, the Tribunal cannot be certain that the evidence provided by the applicant and if available, the transcript of the criminal trial establishes on the balance of probabilities, the substantial truth of the allegations?

What evidence is provided to the Tribunal to enable them to make a judgment on the civil standard?

1. The affidavit of the alleged victim;
2. Any supporting witness statements (in the case of alleged sexual assault and domestic violence these rarely exist)
3. The Police Fact Sheet (which being in the form of a summary takes the evidence no further)
4. A report from a health provider e.g. psychologist, psychiatrist, counselor (usually based on a 1 hour face-to-face interview in which both parties are complete strangers to each other. The report sets out the story given to the health provider by the alleged victim and links it to the mental damage assessed to have been suffered. While Forensic psychiatrists claim to be capable of distinguishing the true victim from the malinger, the question must be asked, do they always correctly DIFFERENTIATE between the truth and a story from a virtual stranger? How much reliance can a Tribunal of Fact place on a psychiatric report without cross-examination of the psychiatrist?
5. A legal letter from the alleged victim's Solicitor setting out the alleged facts and the supporting law. This again takes the evidence no further as the legal representative only knows what he or she is told
6. A Trial transcript (in the case of those nominated defendants who pleaded not guilty) or a transcript of the Sentencing Hearing for those nominated defendants who pleaded guilty. A trial transcript does not necessarily contain all the available evidence as often there may be no direct evidence from the nominated defendant.

In the case of Mr GB who informed the court that he had been an underage male prostitute and had engaged in criminal sexual relations with literally hundreds of clients, how did his health professionals, let alone the Court make a differentiation between the five particular clients of whom he claimed damage and his remaining clients? This issue was made even more problematic given Mr GB's history as a drug and alcohol abuser. Reasonable persons may also find it ironic that the taxpayer of NSW should be found liable to compensate Mr GB for his criminal activities which he voluntarily conducted as a teenager in the mid 1970’s at the Fitzroy Gardens in front of the King Cross Police Station.

Being non-adversarial, the tribunal does not receive any contradictory information or reports.

• The Tribunal does not hear from the applicant
• The Tribunal does not hear from any witnesses that could support the applicant's version of events.
• The Tribunal does not hear or receive submissions from the nominated defendant and any supporting witnesses.
• Under the original 1989 Act it did not refer applicants to nominated health providers.

A reasonable person could well ask how a Tribunal of Fact that does not seek evidence from the nominated defendant and does not permit an appeal by that person know that it has always make a correct judgment? In the case of allegations that have never gone to trial, the allegation remains untested as most nominated defendants would not have made a statement. In the absence of any evidence from the party being accused how can the Tribunal possibly know the truth of the allegation being made by the alleged victim? A statement from an alleged victim to this Tribunal could be particularly “ugly” and contain all the elements of the criminal charge, yet be as fictional as the stories contained in a cheap novel or an episode from "Home and Away". In one case the alleged victim had his statement “proof read” by a Barrister before he submitted it to the Police. In the case of allegations that have gone to trial where the accused has been acquitted and the Tribunal has access to a trial transcript, how can the tribunal be certain that the former accused adduced all possible evidence? Due to trial strategy the defense may have deliberately with-held evidence due to the possibly of prejudice. Evidence in the form of documents or persons may not have been available to the criminal court. Such evidence may not be with-held from a Compensation Claim hearing where the guilt of the former accused is not in question. In the case of trials in which Prasad Directions were given (juries are given the opportunity to find an accused not guilty at the conclusion of the Crown case due to inherent weaknesses in the Crown evidence) the accused is acquitted before giving evidence. In such cases Victim Compensation assessors are also not provided with any evidence from the former accused.

To return to the Marsden judgments, it now becomes clearer how two different Courts were able to come to totally contrary decisions on the same allegation. Unlike Mr GB's Appeal to the District Court, the Supreme Court heard both oral and documentary evidence from all parties, including both the alleged perpetrator, Mr. Marsden and the alleged victim, Mr GB. As both parties were extensively cross-examined, the trial judge was given ample opportunity to apprise himself of the veracity of the witnesses and to assess the truth of their evidence. The following paragraphs are quoted from the Judgment of Justice Levine in order to illustrate material that was available to the Supreme Court but which was not available to the District Court:

Para 1185 Mr GB had to concede in cross-examination that in significant matters, these earlier accounts were inconsistent with his evidence to the Court, and inconsistent with each other. His evidence about the number of times he was supposed to have met Mr. Marsden for sex was indeterminate and inconsistent. In chief he told the Court that he had sex with Mr. Marsden in the Roslyn Street Apartment five or seven times. In cross-examination he settled upon six times. He admitted that he had previously alleged to Detective Inkster of the NSW police service that it was “two to three times”, “could have been five”; to Mr. Quail in March 1995 that he met Mr. Marsden three times; In a statutory declaration in support of his victims compensation application that “the assaults occurred on about 15 to 20 occasions” and to the officers of the Royal Commission that it was between three and six occasions.

Para 1187 Mr GB told the Court that he first met Mr. Marsden sometime between late March 1975 and Early May 1975 and last met Mr. Marsden in August 1976. However, during cross-examination He admitted that he told Mr. Quail in an interview in March 1995 that he first met Mr. Marsdena month. It could have been two weeks’, before he was charged with buggery which was on 6 December 1976.

Para 1188 He told the Court that he did not see Mr. Marsden after their last sexual encounter in August 1976. He told Mr. Davis, however, in February 1996 that apart from the times they had engaged in sex,He and Mr. Marsden had a continuing relationship for some years. These statements to the uncalledDavis attain particular significance in the case of qualified privilege.

Para 1192 Mr GB agreed that on 29 July 1998 he told the Police that on the first occasion he had sex with Mr. Marsden he saw Mr. Marsden park his car in Macleay Street. It was a “big Mercedes; dark colour”. Mr. Marsden did not drive a dark Mercedes at any time in 1975 or 1976. Exhibit EM shows that between 26 November 1973 and 1 April 1976 he owned only a blue Mercedes which Mr. Marsden said was a “very pale light blue”, a “really pale, pale eggshell blue” and between 7 May 1976 and 30 November 1978 he owned a white Mercedes.

Para 1211 (referring to a psychiatric assessment). One of those reports written only months after the time of the alleged encounters with Mr. Marsden records that in respect of Mr GB’s accounts of his life, “it is difficult to sort reality from fantasy”.

Para 1213 Whilst giving evidence before me, Mr GB admitted that as late as February 1996 when he was speaking to Mr. Davis about Mr Marsden, he was “still confusing truth with fantasy”.

Para 1222 The plaintiff turns to what is described as “the most memorable aspect” of Mr GB's evidence. Exhibit AO – the videotaped interview of Mr GB by Mr. Quail in March 1995. According to Mr GB, Mr.Marsden and ‘Fat Jack’ were drug barons, financing huge shiploads of narcotics to be smuggled into Australia. Mr. Marsden was involved in the distribution and sale of large quantities of drugs, transporting them around Australia in fleets of Mercedes Benz. There were many other details just as colourful, just as implausible and just as false. It is submitted that this video interview shows Mr GB for what he is – “a man given to bizarre fantasies who will say whatever comes into his head, whether it is true or not. His allegations amount to no more than incoherent rantings incapable of being treated seriously. Yet the defendant proceeded to publish his other unverified allegations and did not trouble the audience, the police or the Court by bringing Exhibit AO to their attention”

Para 1225 Eventually (Mr GB) admitting that he “gilded the lily with the entire video”.

Para 1229 The best that can be said of this evidence is that if it were true, it would show Mr GB as willing to lie to gain a perceived benefit for himself and to cause harm to Mr.Marsden. There is no reason to be so charitable to Mr GB: his claim to have lied from a selfless devotion to justice is yet another fantasy, the plaintiff submits.

Para 1230 Mr GB was not prepared to acknowledge his lies for what they were until he was cross-examined. By that time he had maintained them for 5 years, repeating them to the Royal Commission in March and September 1995 and again in passing to Mr. Davis in February 1996.

Para 1231 The fact that Mr GB was prepared to repeat his lies about Mr. Marsden to the Royal Commission on two occasions, confirms, it is said, that he is a man with no respect for the truth and no regard for the consequences of his actions. Thus I ought not accept anything he says unless corroborated and supported by independent evidence. In the case of Mr GB's allegations against Mr. Marsden there is no corroboration, merely inconsistent and demonstrably false evidence from Mr GB himself.

Para 1232 I should find, the plaintiff submits, Mr GB is a liar who finds it difficult to distinguish between reality and fantasy. His evidence is uncorroborated, inconsistent with prior statements and demonstrably false. Moreover Mr GB failed to provide any means of identifying Mr. Marsden.

It is clear from the above extracts from the Judgment that having heard testimony from BOTH sides, including vigorous cross-examination of all witnesses. Justice Levine was not satisfied on the Briginshaw common law standard of the allegation of child sexual assault made by Mr GB against Mr. Marsden. In contrast the District Court, restricted by the statutory Victims Compensation Act and the policy of the Attorney-General which did not did not permit Mr. Marsden to be a party to the proceedings, despite being the nominated defendant by Mr GB, did not hear from either the alleged victim (GB) or the alleged perpetrator (Marsden). Reasonable persons could conclude that the District Court did not involve itself in a comprehensive fact-finding exercise as required by the Briginshaw standard but rather sought its judgment from a comparison of two psychological reports rather than seek the truth of the allegation. Although His Honour Judge Correy made his decision on the civil standard, due to the vastly different evidential procedures, reasonable persons could conclude that it could not have been made on the Briginshaw standard. If one accepts that the Briginshaw standard is NOT the standard that has been used in decisions of the NSW Victims Compensation Tribunal since its inception in 1988, then considerable doubt must arise as to the validity of every decision of this Tribunal which was not based on a criminal conviction. This analysis suggests that it was the different fact-finding procedures utilized by the two courts that explain the contradictory judgments. Logically, the Briginshaw common law civil standard cannot be the same as the statutory civil law standard of the Victims Compensation Act.

The failure of Compensation Assessors and Magistrates to seek evidence from sources other than the applicant and the Police in cases where the nominated defendant was acquitted or where proceedings were dismissed or never commenced has seriously undermined the validity of determinations under the Victims Compensation Act as such determinations were not made on the basis of judicial principles or in accordance with the judicial process. Subsequently, the only reasonable conclusion open is to suggest that the NSW Victims Compensation Tribunal has adopted a new standard of proof unknown to the law and in consequence does not act by way of "judicial determination". That is, by way of an authoritative determination by means of the judicial method, by which the Court or Tribunal reaches an enforceable decision by applying the relevant principles of laws to the facts as found.

Reasonable persons could argue that due to the incomplete fact-finding procedures utilized by the NSW Victims Compensation Tribunal that it has become a one-way, one-shop production line for cash money in which the unscrupulous can say whatever they like about whomever they like and receive up to a maximum of $50,000 for their trouble from taxpayer funds. All it takes is the creation of a statement containing all the elements of the crime, a visit to the Police within 2 years of the alleged crime and a report from a Psychiatrist or Psychologist setting out the related damage. Should the matter be heard before a Criminal Court, it would also take a certain degree of play acting and unconscionable behavior by the alleged victims, akin to that attributable to a sociopath.

Denial of Natural Justice

As the Tribunal does not notify nominated defendants of a Victims Compensation Hearing such persons have been denied Natural Justice [16] and procedural fairness[21]

Procedural fairness requires a decision-maker to inform a party whose interests are likely to be affected by the exercise of power of the case against them and to afford that person a reasonable opportunity to comment and make submissions: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[2001] HCA 2 at 86. This requires that the decision-maker disclose the "critical issue or factor on which the decision is likely to turn" and ensure that the "gravamen or substance of the issue or factor” is brought to the party's attention: Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] per Merkel J. A party should not be "left in the dark" as to what are the critical issues:Mahon v Air New Zealand Ltd [1984] 1 AC 808, 821; Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 498; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40].

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 219 Gleeson CJ, Gummow and Heyden JJ quoted the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 as follows:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment byway of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 the High Court quoted from a different part of the judgment in Alphaone at 590-591:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

In Australia there have been persuasive and binding statements in the High Court to the effect that the source of the duty to afford procedural fairness is the common law:Kioa v West [1985] HCA 81 at 576 and 582 (per Mason J); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22, 169 CLR 648 at 653 (per Deane J);Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; Annetts v McCann (1990) HCA 57 at 598 (per Mason CJ, Deanne and McHuge JJ); Ainsworth v The Criminal Justice Commission (1992) HCA 10 at 571-572 and 574-576 (per Mason CJ, Dawson, Toohey and Gaudron JJ.

In NSW the Supreme Court has come to the same view: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 at 91-92 (per Spigelman CJ); Warringah Council v Edmonson [2001] NSWCA 1 at [20], approving Vanmeld at 91-92 (per Fitzgerald JA, with whom Meagher JA and Powell JA agreed); and Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 at 384-386 [6]-[15] per Spigelman CJ with whom Ipp AJA agreed at 445 [296].

Discussion of whether a duty of procedural fairness (or natural justice) arises often commences with the decision of the High Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. In that case, in a passage that has been cited many times, Mason J said:

...there is a common law duty to act fairly, in a sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention (584).

Mason J said that it was necessary, before a duty of procedural fairness would arise, that the rights, interests and expectations of the individual citizen were affected in a direct and immediate way (584). The effect on a person must be as an individual, rather than as a member of the public or a class of the public, for a duty of procedural fairness to arise.

It is clear from Mason J's discussion, at (584) and following, that a duty of procedural fairness can arise in relation to administrative decisions whether made under statute or otherwise. Brennan J, on the other hand, analyzed procedural fairness as arising from the proper construction of the statute and as relating only to the exercise of statutory powers.

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 concerned the conduct of a coronal inquest under a statutory power. The Coroner was conducting an inquest into the deaths of two boys. The parents of those boys were represented at the inquest by counsel who were permitted to examine and cross-examine witnesses. At the conclusion of the evidence counsel for the parents of one of the boys informed the Coroner that he wished to make a closing address covering the whole of the evidence. The Coroner declined to permit any closing addresses by counsel for the parents. The High Court held that the parents had a common law right to be heard in opposition to any potential adverse finding in relation to themselves or their son but did not have a right to make submissions on the general subject matter of the inquest. Mason CJ, Deane and McHugh JJ said as follows:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment (598).

NO SUCH WORDS HAVE EVER APPEARED IN VICTIMS COMPENSATION LEGISLATION IN NSW

Their Honours also quoted with approval the passage from the decision of Mason J in Kioa v West set out above. They held that the interests which the parents represented included the protection of the reputation of their deceased son and that interest gave rise to a common law right to be heard in opposition to any potential adverse finding in relation to themselves or their deceased son (599).

In considering whether the Coroners Act excluded the rules of natural justice, Mason CJ, Deane and McHugh JJ explained the development of the law respecting the scope of the rules of natural justice: it was not until relatively recently that the common law rules of natural justice were held to apply to public inquiries whose findings of their own force could not affect a person's legal rights or obligations. Brennan J observed that personal reputation is established as an interest which should not be damaged by an official finding after a statutory inquiry, unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made (608).

In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, the Criminal Justice Commission prepared a report. The report was tabled in Parliament. By its governing statute, the Commission was required to furnish its report to the chairman of the Parliamentary Criminal Justice Committee, the Speaker of the Legislative Assembly and the relevant Minister. Any such report was granted the immunities and privileges of a report tabled in and printed by order of the Legislative Assembly. The Commission delivered a report which included references to the appellant, Mr Ainsworth, and his group of companies. They had not been given any opportunity to be heard on the matters about them in the report. The High Court held that the Commission was required to comply with the rules of procedural fairness in preparing the report and that the Commission had failed to comply with those requirements. Mason CJ, Dawson, Toohey and Gaudron JJ said as follows:

It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations'. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise ...

As the law has progressed, the only question which now arises is whether the report adversely affected a legal right or interest, including an interest falling within the category of legitimate expectation, such that the Commission was required to proceed in a manner that was fair to the appellants (576, 577)

Their Honours held that the plaintiff's reputation was an interest attracting the protection of the laws of natural justice (577 - 578). They said as follows:

It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice.

Brennan J said in Annetts that:

Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.

Dr Ian Freckleton SC opinioned:

Just as a person's reputation can be adversely affected by findings of fact in a coroner's court, so too can they be by a finding on the balance of probabilities in a crimes compensation forum that a criminal offense has been committed" (Freckleton, I. Criminal Injuries Compensation: Law, Practice and Policy,2001,LBC p. 60)

The policy of Victims Services not to notify an alleged perpetrator that an application for Victims Compensation has been made fails to have regard to the reputational interests of that person.

By setting up a formal structure to adjudicate Victims Compensation claims, the NSW Government has sought the employment of skilled Assessors and Magistrates. A desired degree of skill, dispatch, conscientiousness, detachment and even-handedness would be expected of such persons by both the Government and the Community. The potential damage to a nominated defendant's reputation would be derived, in significant part, from the attendant qualities and skills to be expected of such fact finders. It would be expected by the community that any decision made by such persons would be made from a position of independence and fairness in which independent and skilled assessors well-used to engaging in factual inquiry investigated and reported on asserted events. Due to the high degree of respect given in Australia to judicial decisions, a decision of the Victims Compensation Tribunal to award Victims Compensation would be accepted as a fair and just decision and one beyond reproach. Such a decision might arguably affect a nominated defendant's reputation. It is reasonable to opinion that by not notifying former accused or alleged perpetrators that a person has made a Victims Compensation Claim in which their name has been mentioned that a breach of the common law doctrine of natural justice has occurred.

It could be argued that as there is an express prohibition on publication of identities of any person referred to in proceedings under the Victims Compensation Act 1987, that the situation in Ainsworth could not occur. Pursuant to s.14 of Schedule 2 to the "Act" it is an offense to publish the names of persons to whom any hearing under this Part relates, or who is mentioned or otherwise involved in any hearing either before or after that hearing. However, pursuant to s.14(2) "This clause does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this clause. Given the effect of s.14(2) it is difficult to understand why the decision in Ainsworth does not apply to the NSW Victims Compensation Tribunal. As history shows, despite this prohibition, publication of the names of nominated defendants has occurred both in the NSW Parliament and in the Sydney media as a search of NSW Hansard and media databases demonstrate.

In a Media Statement of June 27, 2001 Mr. Marsden had this to say:

The payment of money to persons under the Victims Compensation legislation, where there has been no convictions, where the person has not had a right to have the allegations tested, is quite wrong and against every principle of natural justice and yet it operates with Government approval in this State. (Justinian, July 3, 2001)[17]

In Stuart v Ronalds (2009) NSWCA 277 at 74 the court said that "The place of the common law as the source of the principles of procedural fairness and the role of the declaration can provide real protection to individuals against the exercise of functions or powers which have the capacity to injure reputation and standing". Given the injustices that potentially exist in NSW as a result of proven Government incompetence, a nominated defendant could successfully seek a Declaration that he or she has been denied natural justice by the NSW Victims Compensation Tribunal. If that person was also in possession of sufficient evidence they might also be able to persuade the Court to declare that the award of compensation did not meet the Briginshaw standard.

NSW Labor Government Cover-Up

Following the inconsistent Judgments in the Marsden matter, Mr. Peter Breen [18] Peter Breen (politician), then an Independent Member of the NSW Upper House and a Solicitor of the NSW Supreme Court asked a series of questions of the NSW Attorney-General in relation to the NSW Victims Compensation Tribunal and the contradictory assessments of Mr GB's claim [19]

The response given by the Hon.M.R. Egan for the Attorney-General was less than satisfactory [20]

Mr. Egan however, sets out in crystal clear language the means by which justice has been subverted and mismanaged by NSW Labor over the last 23 years. As Mr. Egan explains, "the Tribunal provides a "non-adversarial, non-court based system" in which the onus is placed "on the applicant to provide evidence of an act of violence and a compensable injury". Egan goes on to say that "it is simply not the case that the allegations made by a claimant are untested" and quotes the evidence which the Tribunal draws upon to make its findings. "The legislation requires that any application for victims compensation must be in the form of a signed affidavit, medical evidence must be provided by the claimant and relevant police and court reports are independently obtained. A major consideration in determining the claim is whether the matter has been reported to the police". As I have made it clear in this article and as Mr. Breen tried to make it clear in the NSW Parliament, genuine victims do not always make applications, without hearing evidence from the party nominated as the perpetrator and ensuring cross-examination of victims in cases which have not been heard in a criminal court, is a recipe for disaster.

Mr. Breen also made other allegations of corruption and abuse of the Tribunal by fraudulent applicants to the NSW Parliament [21][22]. In particular Mr. Breen said:

During the review of the victims compensation legislation in 2000 I referred to a number of other examples of problems with victims compensation. I was a member of the parliamentary committee that reviewed the victims compensation legislation, and I pointed out to the committee that in my long career as a lawyer I had seen many examples of people exploiting the victims compensation legislation. There were examples of people who were serial claimants on the authority making claims based on stories, for which they received compensation. At that time it was difficult even to get information from the Victims Compensation Authority, except by way of subpoena, to find out just how many claims a particular applicant had made. The review of the legislation in 2000 promised that questions of serial claimants and claims based on unlawful activity would be looked at again, and still nothing has been done. Most recently we had the case of Roseanne Catt. Detective Peter Thomas and her husband, Barry Catt, made false claims on the Victims Compensation Authority to the tune of $89,000. Those false claims are clearly illegal—they involve corrupt activity—but no steps have been taken by the authorities to recover that money or prosecute the people involved in the false claims. So there are matters relating to the Victims Compensation Authority that need to be addressed, but they are not addressed in the bill. To the extent that the bill supports the recommendations of the review, it is good legislation and should be supported by the House. However, I suggest that serial claimants, unlawful claims and people who are the beneficiaries of unlawful activity receiving money from the Victims Compensation Authority are all matters that need to be addressed".

A brief resume of the Roseanne Catt story is provided above in which she was entrapped by two persons whom she claimed were pedophiles, was convicted, served a term of imprisonment and was finally released after an appellate court review.

The contradictory nature of the Marsden judgments did not escape the notice of the Sydney media.("Marsden victim awarded $135,000 for sex assault", Sydney Morning Herald, Thursday March 1, 2001; "Pay-out over second sex attack claim", Sydney Morning Herald, Sunday April 8, 2001; Leviathan 'Blog' The lead article is found in Justinian Monday, February 5, 2001 [23] in which the claim by Mr GB is described in detail.

Despite the media outrage at the contradictory judgments and the protests of Mr. Breen to the NSW Labor Government, I am not aware of even one person being charged let alone convicted of making a fraudulent claim on the NSW Victims Compensation Tribunal. Despite having the power to make an enforcement order against an offender to repay the compensation awarded, the Tribunal has not been given the power to independently investigate allegations of fraud, to make determinations or to enforce those determinations. I submit that apart from the obvious embarrassment to the NSW Labor Government who created this Tribunal, it is not in the interests of NSW Police Force to charge anyone who had previously claimed to them that they were a victim and on whose evidence they had mounted an unsuccessful criminal prosecution. I submit that NSW Police Force would never admit that they made an error of judgment for fear of a common law claim of malicious prosecution. The NSW Labor Government refuses to accept that their scheme was open to abuse from the beginning due to its poorly thought out assessment procedures.

In 2007 Mr. Greg Smith, Member for Epping and Shadow Attorney-General in the NSW Parliament asked a series of questions to the Minister for Police. Again the answers by the NSW Labor Government were less than satisfactory.[24]

Despite the contradictory judgments in the Marsden case which made public the total failure of assessment procedures in this Tribunal, the resultant scandal and the complaints to Parliament, the NSW Labor Government did not change its policy of not notifying nominated defendants of Victims Compensation Hearings. A reasonable person could well ask how a Tribunal that does not seek evidence from the nominated defendant and does not permit an appeal by that person know that it has always make a correct judgment? In the case of allegations that have never gone to trial, the allegation remains untested, as the Tribunal does not have a statement from the nominated defendant. In the absence of any evidence from the party being accused how can the Tribunal possibly know the truth of the allegation being made by the alleged victim? A statement from an alleged victim to this Tribunal could be as fictional as the stories contained in a cheap novel or an episode from "Home and Away". If somebody alleges sexual assault or domestic violence and there is no statement from the alleged perpetrator, no cross-examination of the alleged victim and no witness, how does the Tribunal test the evidence? In the case of allegations that have gone to trial where the accused has been acquitted and the Tribunal has access to a trial transcript, how can the tribunal be certain that the former accused adduced all possible evidence? Due to trial strategy the defense may have deliberately with-held evidence due to the possibly of prejudice. Such evidence may not be with-held from a Compensation Claim hearing where the guilt of the former accused is not in question. In the case of trials in which Prasad Directions were given (juries are given the opportunity to find an accused not guilty at the conclusion of the Crown case due to inherent weaknesses in the Crown evidence) the accused is acquitted before giving evidence. In such cases Victim Compensation assessors are not provided with any evidence from the former accused. Given this analysis reasonable persons could conclude that the Hon.H.R. Egan misled Parliament on the advice of the then Attorney-General when he claimed that it was not true that compensation allegations were properly tested. I submit to the NSW Labor Government that any primary schoolchild would know that if both sides of a story are not provided to a Judge, then mistakes will be made.

Financial Statistics

In December 1997 a Report on the "Long-Term Financial Viability of the Tribunal" was completed by the Joint Select Committee on Victims Compensation, Chaired by Mr. Tony Stewart MP.[25] In that report it was stated that:

• a total of $82.9 Million was awarded in Victims Compensation for the years 1995-96 of which a total of $1.86 Million was recovered from offenders.
• Outstanding debts to the Fund recorded by the Auditor General at 30 June 1996 totalled $113.9m, with a provision for doubtful debts of $102.9m.

As only 51.2% of all compensation awards for that year were based on a conviction, this meant that 48.8% were not based on a conviction and that a total of $40.46 Million was given to alleged victims.

In the Chairperson's Report for 2007/2008 [32]it was reported that:

• Applications for statutory compensation received during the review period totaled 7031. Assessors determined a total of 4013 claims for compensation.
• A total of $61 million (statutory compensation awarded by assessors and Tribunal on appeal,professional costs and disbursements) was paid.
• Pending claims have increased from 7297 to 10 241.
• In the year 2004/05, 2887 applications were dismissed in 2005/06, 2210 and, in the year under review, 1383;
• The number of appeals to the Tribunal totalled 639 and 563 were determined. There were 177 appeals pending at the close of the financial year.
• A total of $3.36 million was collected from convicted offenders during 2007/08 slightly down from the previous year in which $3.63 Million was recovered.
• Since the inception of the statutory scheme in 1988, more than $41 million has been recovered from convicted offenders. In excess of $28 million of this amount has been recovered since 2000".
• For the year under review there was a substantial increase in applications received over the previous year – 7031, an increase of nearly 25 per cent.
• Awards for the compensable injury of domestic violence made by compensation assessors totalled 638. Domestic violence is recorded as the offense in 963 claims. There has been a steady rise in the number of claims lodged where the applicant applies for statutory compensation for the compensable injury of domestic violence.
• In the year 2007/08, compensation assessors determined 1044 claims where sexual assault was recorded as the offense. Awards were made in 722 cases. Of the 944 claims for child sexual assault lodged out of time, 142 claims were lodged where the applicant is now aged 41–50 years, 65 claims where the applicant is now 51 to 60 years and 14 claims where the applicant is over 61 years.
• In recent times there has been substantial increase in the number of multiple claims lodged by some applicants – especially where sexual assaults or domestic violence is claimed. At present approximately 1000 victims have multiple compensable claims pending,generally such claims are historic.

Based on the 1997 figures, given that the Tribunal was founded in 1989, this gives a general figure of $800 Million awarded in Victims Compensation by this Tribunal over the last twenty years of Taxpayers dollars to persons whose clams have either never been heard in a criminal court or when heard were not accepted on the criminal standard of beyond reasonable doubt. Given the contradictory judgments in the Marsden case, it is also highly likely that many if not most of these claims would not meet the Briginshaw civil standard as formulated by the High Court of Australia.

Criminal Compensation Laws in Other Australian States

A brief description of Criminal Compensation Laws in the other Australian States shows that NSW is the ONLY State that does not permit submissions from nominated defendants.

The Australian Capital Territory

The relevant legislation is the Victims of Crime (Financial Assistance) Act 1983 (ACT)[26]

The application is heard initially at a Conference before the Deputy Registrar of the Magistrates Court at which the Victim and a support person can attend. If the victim is not satisfied with the compensation assessment they can take the matter to a public hearing in the Magistrates Court. The provisions of the Magistrates Court (Civil Jurisdiction) Act 1982 apply and proof is on the balance of probabilities. Persons not convicted of a criminal offense can be nominated defendants. Recovery of compensation can only be ordered on a convicted defendant. A 'Victims Services Scheme" is established to provide therapeutic services to victims [34]

Although the alleged offender can be contacted in cases where versions of events differ, in practice, the offender is rarely contacted. The maximum award is $50,000.

Northern Territory

The relevant legislation is the Victims of Crimes Assistance Act 2006(NT)[27] Applications are made to the Crime Victims services unit within the Department of Justice [28]

The Victims of Crime Assistance Regulation 2007[29] sets out the table of fixed amount for the various injuries. A minimum amount of $7,500.00 must be assessed in order to acquire compensation. The application should be made within 2 years from the date of the alleged criminal offense. An assessor (who must be a legal practitioner). An award of compensation does not depend on a conviction and the standard is the balance of probabilities. However, pursuant to s.33 the Director of the Unit may give a copy of the application and the Entitlement to make a submission to the Assessor to the nominated defendant and any other person who the Director believes as an interest in the matter. As soon as practicable (but within 28 days) after receipt of this notice, the person to whom the notice is directed may give the Director a written submission relating to the application. The Director must give each submission to the assessor. The Assessor is required to have regard to any submissions and to reach a decision. The Assessor is entitled to obtain information and make any inquiries as deemed fit and require the applicant to furnish further documents or information. An Assessor can by written notice require any other person to provide information or documents within the time specified in the notice. The applicant can appeal decisions of the Assessor to the Local Court.

Denial of Human Rights

The policy of the NSW Government not to notify nominated defendants (that is, persons who have not been subject to criminal conviction for the nominated crime) could be considered a denial of human rights under International Law.

European Convention on Human Rights

While Australia is not subject to the European Convention on Human Rights, it is instructive to consider the jurisprudence of the Convention in terms of this NSW tribunal. It is submitted that if such a Tribunal existed within the member States of the Convention the following Articles would permit an application before the European Court of Human Rights by a nominated defendant.

Article 5 Right to a Fair Trial

Article 13 Right to an effective remedy

International Treaty of Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. The Treaty came into force in Australia(except Article 41) on the 13 November 1980; Article 41 came into force generally on 28 March 1979 and for Australia on 28 January 1993.

A nominated defendant could be entitled to make a complaint against the NSW Government to the United Nations Committee on Human Rights for breach of the following articles of the International Treaty of Civil and Political Rights:

Article 14 All persons shall be equal before the courts and tribunals;

Article 16 Everyone shall have the right to recognition everywhere as a person before the law;

Article 17 Right to Privacy, family, home, correspondence, honour and reputation;

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

Solutions

As the objective of any State Compensation Scheme is to award compensation to genuine victims any resolution of this problem must balance the needs of the genuine victim against those who make fraudulent claims. The legislation must be amended to provide a right for alleged perpetrators to become parties to the proceedings and that all parties be required to give oral evidence and be cross-examined. Alleged perpetrators would be informed by the Tribunal that an application for Victims Compensation has been made in which their name has been nonimated as the alleged perpetrator, the date and location of the hearing, the right for them to become a party to the proceedings, the right for them to be legally represented and to provide evidence both orally and in documentary form to the Tribunal. As genuine victims may not wish to confront their former attackers or relive the history of the matter, provisions should also be made for applicant victims to request the Tribunal that the alleged perpetrator not attend and/or that they not be required to give oral evidence. Such applications should be heard by the Tribunal and be open to challenge by the alleged perpetrator. At the conclusion of such hearings, the Tribunal should be given the power to either proceed to hear the application with both parties present without any restrictions as to the presentation of evidence, or to order such restrictions as the circumstances demand. This could include an order for staggered hearings in which the alleged victim and the alleged perpetrator give evidence on different days or an order that oral examination from one or both parties is not required. This procedure would allow a legal representative or agent of the alleged perpetrator to be present during the application hearing, even if the alleged perpetrator was prohibited from attendance. This would ensure that any documentary evidence from the alleged perpetrator was made available to the Tribunal and that a submission as to why the award should not be made be heard by the Tribunal. In those cases where alleged perpetrators could not be contacted or did not respond to Tribunal notices, the application would proceed as a paper hearing without any input from the alleged perpetrator. At all stages appeal provisions should be inserted into the legislation for both the alleged victim and the alleged perpetrator including alleged perpetrators who could satisfy the Tribunal that they had not received notice of the hearing.

Another approach is to return to the position where Victims Compensation Applications are heard by the same Judicial Officer or jury that heard the criminal allegation as having heard all the evidence they are in the best position to judge the validity of the claim. This procedure would also allow for further evidence to be brought to the attention of the court by either the Prosecution or the Defense. Applications which did not proceed to criminal trial could either be heard by a Victims Compensation Tribunal or a local Court sitting as a Victims Compensation Tribunal.

Conclusion

An important issue for the current NSW Coalition Government is to reform the procedures for awarding Victims Compensation. Over the last 23 years the NSW Victims Compensation Tribunal, a Statutory Tribunal created by the Unsworth Labor Government has potentially awarded millions of dollars of compensation to fraudulent claims due to its inadequate, unbalanced and unfair assessment procedures. As the Hon. H.R. Egan made clear in the NSW Parliament in his reply to the Hon. Peter Breen, the objective of the Tribunal is to provide a non-adversarial means by which genuine victims can be provided compensation in an atmosphere which respects their status as a victim. Unfortunately, as any reasonable person knows, people do not always tell the truth, particularly when substantial sums of public money are involved. A Government that assumes that all victim compensation applications are genuine is a very naive Government. A Tribunal which does not hear from either the alleged victim or the alleged perpetrator and does not allow the alleged perpetrator to be a party to the proceedings, must inevitably make mistakes. Due to the contradictory judgments in the Marsden case the NSW Labor Government was provided with absolute proof that the provision of a Victims Compensation Tribunal who decides compensation applications without hearing evidence and enforces a policy of not notifying nominated defendants of those hearings is unworkable and has produced fraudulent claims. The NSW Labor Government was warned in Parliament in 1987 at the beginning of the scheme by the then leader of the State Opposition Mr. John Dowd (who later became Justice Dowd of the NSW Supreme Court) of the potential problems associated with this Tribunal. The Labor Government choose to ignore Mr. Dowd and later chose to ignore the contradictory judgments in the Marsden case. Given these contradictory judgments why did the NSW Labor Government not change its policies nor charged any person with fraud on the Tribunal? As it currently stands this Tribunal has been given inquisitorial powers by the Government to make any inquiry it sees fit, however, this legislative intent has been subverted by the same Government by its policy of not notifying nominated defendants that an application for an award of Victims Compensation has been made. In New South Wales the person who said that "Crime does not pay" as obviously never heard of the publicly funded hand-outs provided by this Tribunal. Reform of these unworkable and incompetent Labor policies need to be undertaken by the new Coalition Government as the continuation of the present position only serves to diminish and cheapen those genuine claims that have been made to this Tribunal and to seriously compromise the Rule of Law in NSW.

UPDATE

The NSW Coalition Government has announced a review of the NSW Victims Compensation Scheme.

Chairpersons

• Cecil Brahe (to 2009)
• Acting Magistrate Brian Lulham

Primary

• NSW Hansard 1987 para 17016 17019
• Commonwealth Hansard
• "Marsden victim awarded $135,000 for sex assault", Sydney Morning Herald, Thursday March 1, 2001.
• "Pay-out over second sex attack claim", Sydney Morning Herald, Sunday April 8, 2001.
• Justinian Monday, February 5, 2001
• Victims Services Homepage [30]
• Victims Compensation Act[31]

Secondary

• Freckelton, I Criminal Injuries Compensation: Law, Practice and Policy, 2001 Law Book Co.