SW v Attorney-General for Western Australia & Anor [2012] HCATrans 157 (22 June 2012)

Last Updated: 28 June 2012

[2012] HCATrans 157

Office of the Registry
Perth No P5 of 2012

B e t w e e n -

SW

Applicant

and

ATTORNEY-GENERAL FOR WESTERN AUSTRALIA

First Respondent

HER HONOUR JUDGE SCHOOMBEE

Second Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 12.36 PM

Copyright in the High Court of Australia

MR C.P. SHANAHAN, SC: May it please the Court, I appear with my friend, MS L.B. BLACK, on behalf of the applicant. (instructed by Leonard Cohen Legal)

MR R.M. MITCHELL, SC: May it please the Court, I appear with my friend, MR A.K. SHARPE, on behalf of the respondent. (instructed by State Solicitor (WA))

HEYDON J: There is a submitting appearance for the second respondent, I think.

MR SHANAHAN: Yes, that is so, your Honour.

HEYDON J: Yes, Mr Shanahan.

MR SHANAHAN: Your Honour, this matter turns on the construction of paragraph 39(1)(b) of the Criminal Injuries Compensation Act 2003 (WA). The relevant version of that Act is Reprint No. 2, and that has been provided to the Court by my friends.

HEYDON J: Yes.

MR SHANAHAN: Can I take your Honours to page 33 of that particular bundle? Your Honours will see that that is the page on which section 39(1)(b) appears. The applicant contends that an applicant for criminal injuries compensation can only be disentitled under that provision if she was committing an offence at some time during the period she was being offended against. In other words, there is a reciprocity of criminal conduct required. The applicant did not commit any offence while she was being sexually assaulted, and was therefore entitled to compensation.

In order to succeed with that contention, your Honours, the applicant has to make out two propositions, and they are these. The first proposition is that conduct by an applicant for compensation other than at the time she received her injuries is not relevant. In other words, in this case, conduct by the applicant prior to or after the sexual assault is not relevant for the purposes of paragraph (b). Two, a victim of sexual assault cannot commit a separate criminal offence requiring an element of knowledge, intention or control whilst being sexually assaulted. They are the two propositions.

Before expanding on those propositions, it should immediately be conceded that the applicant admits that she smoked amphetamine with her assailant, both before and after the sexual assault, albeit that she says that there was a break in time of about an hour between her smoking amphetamine in the first instance and when the sexual assault commenced. If your Honours want a reference for that, that appears in the decision in the District Court by her Honour Judge Schoombee at application book page 8, line 50, paragraph 24, but I do not need to take your Honours there. I do not think that that is in dispute.

Turning to the first proposition, that requires that the applicant make out its construction of this provision. In order to do that, I would like to explain the applicant’s construction in the context of what was applied in the court below, and to deal with some of the examples used in the court below, and briefly describe why the applicant’s construction must be preferred. His Honour the Chief Justice sitting in the Court of Appeal found at page 54 of the application book, and if I can take your Honours to that, at line 20, that:

The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct.

The applicant accepts that that is the purpose of this paragraph, but says that a purposive interpretation of 39(1)(b) is not required in this instance because on its face the language used in that provision is not ambiguous or inconsistent. I would like to explain why the applicant says that by giving your Honours the construction of the provision that is argued for. What is argued for is that in the court below the focus was primarily on the word “when” and if your Honours turn to the provision you will see that at paragraph (1)(b) the language reads:

If an assessor is satisfied –

and that is satisfied on the balance of probability. “Satisfied” is defined in the Act as being satisfied on the probabilities:

(b) that the injury was suffered when the person was committing a separate offence –

What the applicant says is that rather than focusing primarily on the word “when” the first inquiry required by the paragraph is to determine when the injury was suffered. In other words, that when the injury was suffered marks the outer boundaries of the temporal period, the time, within which disentitling conduct could be committed by an applicant for compensation.

In this case, with great respect, your Honours, it is quite a simple question because if we look at what happened in this case the applicant was sexually assaulted and applied for criminal injuries compensation and she sought compensation for her injuries which included psychological injuries as a result of the offending. So, in other words, the applicant sought compensation - this appears at page 31 of the application book in the judgment of her Honour Judge Schoombee.

HEYDON J: Paragraph?

MR SHANAHAN: At paragraphs 114 and 115, line 20, your Honour. Your Honours will see that there was a claim for psychological injury. In fact, that was a significant part of the award that was made in the District Court. The point is, of course, that in terms of the timing of when those injuries were suffered they are referable to the whole of the sexual assault by the perpetrator. In other words, the time at which the injury was suffered is not a single point in time such as penetration in a sexual assault. It is the whole period, the duration of the offending against the applicant.

So, if one then looks at 39(1)(b) one can say that the ambit of the provision is marked out by the period within which that offending occurred. If one accepts that and the applicant says that should be accepted, the other point that I should make is that the argument that was put in the Court of Appeal is not the argument which was summarised by the Chief Justice at page 61, line 50. If I could take your Honours briefly to that, where his Honour said at line 50, right at the bottom of the page:

Put another way, SW’s assertion is essentially to the effect that in order to be excluded from compensation by the operation of s 39, it would have to be concluded that she was committing a criminal offence at the exact instant in time at which she was indecently assaulted or sexually penetrated.

That was not the applicant’s argument. The applicant’s argument is that the relevant period of time, which is designated by the words “she was injured” or “the applicant was injured”, refers to the whole duration of the period of offending against her. If we accept that that is an important inquiry for the purposes of this provision then we can see that if we look at the reasoning below there was, in the applicant’s respectful submission, too much of a focus on the use of the word “when” and if I could just explain that. His Honour, the Chief Justice, in support of his view of the purpose of paragraph 39(1)(b) at application book page 53 – so if I could ask your Honours just to flick back to page 53?

HEYDON J: Yes.

MR SHANAHAN: Right at the bottom of that page at line 50:

statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute.

It goes on to say that, effectively, the use of the word “when” can be used to encompass a period which is more than a particular moment. His Honour, the Chief Justice, uses the words:

an incident or occasion –

at about line 8 on page 54. Now, what the applicant says is that, with great respect, that is wrong because the relevant period, for the purposes of 39(1)(b), is the whole duration of the sexual assault against the applicant as being the time at which she was injured. Then the question becomes - - -

BELL J: Mr Shanahan, can I just ask you this?

MR SHANAHAN: Yes, your Honour.

BELL J: As I understand it, the unanimous holding in the Court of Appeal was that the approach adopted by Judge Yeats in the matter of Richardson, which is set out at application book 54 and 55 in paragraph 33, was correct and that is an approach involving a factual inquiry by the assessor of the facts and circumstances of the individual case to determine whether a sufficient temporal connection exists.

MR SHANAHAN: Yes.

BELL J: What is it about that that you say evidences error?

MR SHANAHAN: I think what we say about that, your Honour, is that it evidences error because it contemplates that offending by an applicant during the course of an incident or an occasion might be disentitling conduct within the meaning of 39(1)(b), when the applicant says, no, the relevant offending has to occur during the period that the applicant was being offended against. Let me try and put it more simply. In this case, a perpetrator sexually assaulted the applicant. What we are saying is that for it to be disentitling conduct, the applicant would have had to have committed a separate criminal offence during the course of that sexual assault – not during an incident, not during an occasion, not during an afternoon – that the act requires the specificity that is set out at 39(1)(b) – ie, that the offending occur at the time when the applicant was injured.

BELL J: You add there the words “at the time” to the statutory language?

MR SHANAHAN: Well, with great respect, your Honour, the applicant would say that that is anticipated because if we look at the words of the statute, it says:

If an assessor is satisfied –

. . .

(b) that the injury was suffered –

Well, “was” brings with it a reference, the applicant says, to the time it was suffered because if it was not a reference to time, then there could be no sensible work for the balance of that paragraph to do. It is two periods of time which must intersect. That is the applicant’s contention.

BELL J: There is a temporal connection – if I could use Judge Yeats’ words, quoted with approval by the Court of Appeal, and a factual inquiry as to the connection between the offence causing injury and the conduct said to be disentitling and that is a factual inquiry to be examined on the particular facts and circumstances of a case. In the case of your client, it is open to her to have the review which she seeks conducted in the District Court upon the basis that there is a factual issue as to the sufficiency of the temporal connection. Is that not the position?

MR SHANAHAN: Absolutely, your Honour, but with great respect, that does not deal with the point of principle that is being put on this application which is that the construction of 39(1)(b) has to be applied appropriately because if one adopts her Honour Judge Yeats’ construction, it means that the assessor, in determining whether or not compensation should be awarded can have reference to criminal offending by an applicant outside of the period in which she was injured, and that is precluded by paragraph (b).

That is the point of principle, your Honour, it is not a matter of – the applicant accepts what your Honour puts, that the inquiry for an assessor or a judge in the District Court must necessarily be one in which the Act is applied on a proper construction and taking into account all of the facts and circumstances of the case. There is no argument with that.

The contention is that in this case the construction that was applied goes beyond the meaning of the words, the ordinary natural meaning of the words that are used in paragraph (b). Could I just explain that a little more perhaps? The Act deals with criminal conduct. It deals with crimes and their consequences and it makes sense, with great respect, that when the Act talks about that that injury was suffered, it is referring to the commission of an offence because one cannot make an application for compensation unless it is the consequence of a criminal act.

What is being put is that if one understands the reference to “that the injury was suffered” as being a reference to the assault, in this case the sexual assault against the applicant, then all that one has to do in order to work out whether the applicant has been guilty of disentitling conduct, if that is the right word, is to determine whether or not she was committing a separate offence at any time during that period. It becomes a very clinical exercise and one which is simply a matter of fact finding, rather than using the rubric of incident or occasion or event in order to determine what the relevant time period is for the purposes of paragraph (b).

HEYDON J: Mr Shanahan, is there a sense in which this application is, as it were, premature? Let me put it this way. The Court of Appeal were concerned with what was open to be done on the evidence or what the evidence was capable of supporting, not with what the evidence actually led to, what actual conclusions should be arrived at. Is it not more satisfactory for your desire to ventilate the precise test to be done against a background of what the evidence actually establishes?

MR SHANAHAN: No, your Honour, for this reason. In this State an application for compensation is made to an assessor. It can then go on an appeal to the District Court. There is no appeal from the District Court decision. Section 57 of the Act precludes it. The only way that this came before the Court of Appeal was because of the Attorney’s application for judicial review. If the matter now was to be sent back to the District Court all that will happen is that a District Court judge will apply the construction of the Act which is found for by the Court of Appeal and there will be no appeal.

HEYDON J: But you can make an application for judicial review for error of law on the face of the record?

MR SHANAHAN: My client is effectively indigent, your Honour, and she has already been through the process with the assessor, the process with the District Court, and now she has been to the Court of Appeal and now the point of construction has properly arisen in the context of the decision in the court below to force her – with great respect, to force her to go back to the District Court merely to get another decision which she would then have to seek judicial review on against the backdrop where the Court of Appeal has already decided the question seems to the applicant to be a very tortuous route to bring this matter to this Court’s attention. That is the reason for this application.

Your Honours, there are two provisions in other States or Territories which mirror the construction issue that the applicant is putting in this case. If I could take you briefly to material that was filed on behalf of the applicant, it set out the comparative provisions. I do not know if your Honours have that.

BELL J: Yes.

HEYDON J: Yes.

MR SHANAHAN: There are two relevant provisions. One is the South Australian provision which appears at page 9, halfway down the page. This is section 20(5)(a) which begins “The court must not”. Do your Honours have that?

HEYDON J: Yes.

MR SHANAHAN: Your Honours will see at paragraph (a) that whilst there is a different measure of proof and whilst only particular offences are involved it is essentially the same construction. That was the provision adopted in 2009 after the West Australian Act was enacted in 2003. Similarly, the Northern Territory provision which appears at page 15, section 43(f) at the bottom of the page - - -

HEYDON J: Yes.

MR SHANAHAN: - - - also requires the same test.

HEYDON J: I understand that.

MR SHANAHAN: Now, your Honours, my time is running short and I have to make one other point - - -

HEYDON J: Very well.

MR SHANAHAN: - - - and that is this. If the construction that the applicant is arguing for was to be accepted, then conduct by the applicant either outside of the period within which she was being sexually assaulted becomes irrelevant. That only leaves the time during which she was sexually assaulted as being the period within which she could have committed a criminal offence that would have fallen within paragraph (b). The contention that the applicant makes in that regard is that when someone is being sexually assaulted they are being coerced and in this case it would be entirely impossible as a matter of law for the applicant to commit any of the offences that his Honour the Chief Justice describes at page 62 of the application book.

BELL J: Is this paragraph 55 which sets out a number of the offences?

MR SHANAHAN: That is so, yes, three, your Honour, yes. Those three, and each of them has an element of either knowledge, intention or control which the applicant says the applicant could not possibly have had at the time she was being sexually assaulted.

BELL J: But surely that is a factual matter?

MR SHANAHAN: Well, yes, your Honours, but in this case the applicant’s evidence was accepted both by the assessor and by the judge in the court below and the applicant provided your Honours with a full copy of her police statement for this reason only, that the copy of the police statement was used as the basis for fact finding by each court. If your Honours go to that statement you will find that what the applicant says is that the offending begins at paragraph 86 and finishes at paragraph 173, and during the course of that period there is simply no evidence of any criminal offending by the applicant and there could be none because if one reads those paragraphs, which was the reason for their provision, one can see that, as in most cases of sexual assault, the applicant gives evidence about her feelings of powerlessness and being coerced by the perpetrator. I do not think I need to take your Honours to that in detail, but that is where it is. So, your Honours – I think that is my time.

HEYDON J: So, your Honours, what?

MR SHANAHAN: Well, I was just going to say in summary, your Honours, that the primary point of principle is the construction of 39(1)(b). If that is accepted, there is no evidence of any offending within the period identified by the applicant’s construction. There is therefore no basis for the exercise of the court’s power to give prerogative relief in the court below. If your Honours please, they are the submissions of the applicant.

HEYDON J: Yes, thank you, Mr Shanahan. We need not trouble you, Mr Mitchell.

In our opinion, there are insufficient prospects of successfully disturbing the outcome that was arrived at in the Court of Appeal to justify the grant of special leave in this case. Accordingly, the application is dismissed.

MR MITCHELL: We would seek costs, your Honour.

HEYDON J: Yes, very well. Can you say anything adversely to a costs order?

MR SHANAHAN: Yes, your Honour. This matter was brought in the nature of a test case by the Attorney in the court below.

HEYDON J: No, no, the Attorney-General agreed to pay your costs in the court below because he was raising it as a test case. Now, you are raising it as a test case.

MR SHANAHAN: Your Honour asked me. That is all that can be put.

HEYDON J: Very well. The applicant is ordered to pay the costs of the first respondent.

AT 12.58 PM THE MATTER WAS CONCLUDED