PARTIES: CHRYSTAL CLAIRE ROBERTS
v
NORTHERN TERRITORY OF AUSTRALIA
and
ROBERT HODGINS
FILE NO(s): 20112734, 20119331, 20119333, 20119335 and 20200091
PARTIES: CHRYSTAL CLAIRE ROBERTS
v
NORTHERN TERRITORY OF AUSTRALIA
and
RONALD HODGINS
FILE NO(s): 20119339
TITLE OF COURT: Local Court
JURISDICTION: Crimes (Victims Assistance) Act
DELIVERED ON: 15 April 2002
DELIVERED AT: Darwin
HEARING DATE(s): 4 February, 2002
DECISION OF: Mr V M Luppino SM
CATCHWORDS:
Crimes Victims Assistance – Extension of time to file application - Discretion to allow extension of time – Prejudice.
Crimes (Victims Assistance) Act ss 5(1), 5(3), 5(4), 12(b), 16(1).
Crimes Compensation Act ss 5(1), 5(3), 16(1).
Solomon v Webbe & Anor (1993) 112 FLR 64; Commonwealth v DKB Investments (unreported, Supreme Court, NT, Mildren J, 12 September, 1991); Braedon v Hynes (1986) 4 MVR 521; Napolitano v Coyle (1977) 15 SASR 559; Forbes v Davies & Anor (1994) Aust Torts Reports 81-279; Ulowski v Miller [1968] SASR 277; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Woodruffe v Northern Territory of Australia (2000) 10 NTLR 52.
REPRESENTATION:
Counsel:
Applicant: Ms J Truman
First Respondent: Ms M Savas
Second Respondent: Mr D Dalrymple
Solicitors:
Applicant: Halfpennys
First Respondent: Withnall Maley and Co.
Second Respondent: Dalrymple and Associates
Judgment category classification: B
Judgment ID number: [2002] NTMC 011
Number of paragraphs: 49
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20112734, 20119331, 20119333, 20119335 & 20200091
BETWEEN:
CHRYSTAL CLAIRE ROBERTS
Applicant
AND:
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
and
ROBERT HODGINS
Second Respondent
No. 20119339
BETWEEN:
CHRYSTAL CLAIRE ROBERTS
Applicant
AND:
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
and
RONALD HODGINS
Second Respondent
REASONS FOR DECISION
(Delivered 15 April, 2002)
Mr V M Luppino SM:
1. In each of these matters the applicant has applied for an extension of time to file an application for an assistance certificate. Two matters are under the Crimes (Victims Assistance) Act namely file numbers 20119333 and 20119335 and four matters are brought under the Crimes Compensation Act namely file numbers 20112734, 20119331, 20119334 and 20200091. Various affidavits have been filed in support of the application on each file.
2. The applicant in each matter is the same person. The second respondent in five of the matters (20112734, 20119331, 20119333, 20119335 and 20200091) is the same person namely, Robert Hodgins. The second respondent in the remaining matter (20119339) is Ronald Hodgins. Both Robert Hodgins and Ronald Hodgins are cousins of the applicant.
3. In each of the matters the essential allegations are the same. The applicant alleges that the relevant second respondent sexually assaulted her. Each of the sexual assaults is alleged to have occurred on discrete occasions between on or about June 1985 and November 1989 in the case of Robert Hodgins and sometime between April and June 1994 and October 1994 in the case of Ronald Hodgins.
4. The applicant was an infant at the time of all bar the last of the offences. She was born on 3 December 1975 and consequently attained 18 years of age on 3 December 1993.
5. The history of the lodgement of the various applications in this matter is as follows:
5.1 The application in file number 20119339 (the only Ronald Hodgins matter) was filed on 11 December 2001. That application was amended on 14 December 2001.
5.2 The application in file number 20112734 was filed, apparently in person by the applicant, on 17 August 2001 and was amended on 11 December 2001 after Ms Spurr took over the matter. Why this matter alone was filed well before the remaining matters was not explained.
5.3 The applications in file numbers 20119331, 20119333 and 20119335 were each filed on 11 December 2001.
5.4 The application in file number 20200091 was filed on 3 January 2002.
6. The evidence in support of the applications for an extension of time comprises affidavits of the applicant as well as affidavits by the applicant’s solicitors. The applicant alleges that she was unaware of her rights to claim until sometime in early 2001 when Fiona Husson, a lecturer at the Northern Territory University Law School, advised her through another person in relation to laws relevant to Crimes Victims Assistance and recommended that she obtain legal representation.
7. The applicant claims that in February 2001 she consulted a solicitor, Ms Franz who advised her to report the matters to the police and to make application for assistance. An application for legal aid was submitted and that aid was granted on 20 February 2001. The applicant reported the matter to the police on 11 June 2001.
8. On 11 August 2001 the applicant consulted Ms Little who I think was an associate then at least of Ms Franz. What occurred between the initial consultation with Ms Franz in February 2001 and the consultation with Ms Little on 11 August 2001 was not the subject of any evidence. As a result of an apparent conflict Ms Little referred the applicant to Ms Spurr, whom she consulted on 1 October 2001, i.e. a little over six weeks later. She alleges that Ms Spurr advised her for the first time that multiple applications for compensation could be made. Presumably neither Ms Franz nor Ms Little told her about that. That was not clarified.
9. On 11 October 2001 a transfer of the grant of legal assistance in the matter was made together with an extension of the grant.
10. In her affidavits of 11 December 2001 Ms Spurr confirms that on 1 October 2001 she saw the applicant and discussed with her the possibility of making multiple applications and received instructions to do so. She then confirms that on 3 October 2001 an extension of aid was sought for the purposes of multiple applications and this extension of aid was granted on 11 October 2001. She also deposes that on 3 October 2001 she sought information from the Northern Territory Police in relation to the matter but received no response. She indicates that she took some time to prepare the documentation because the documentation was complicated. The documents were finally prepared on 6 December 2001 and filed on 11 December 2001.
11. Ms Truman in her affidavit sworn 2 January 2002 deposes that when she took over the conduct of the matter from Ms Spurr on 24 December 2001, it was apparent to her that a claim in relation to one offence had been missed and she therefore prepared the appropriate documentation. I do not consider that anything turns on the further delay between 11 December 2001 and 3 January 2002
12. The relevant provisions of the Crimes (Victims Assistance) Act and the Crimes Compensation Act relevant to the question of time limits and extension of time are, for all intents and purposes, identical.
13. The history of the legislation is that the Act, when originally passed (No. 46 of 1982), was known as the Crimes Compensation Act. That Act commenced on 28 January 1983. The relevant sections of the Act dealing with time limits were section 5(1) and section 5(3). From 28 January 1983 these provided as follows:
5. APPLICATION FOR COMPENSATION CERTIFICATE
(1) A victim may, within 12 months after the date of the offence, apply to a Court for a compensation certificate in respect of the injuries suffered by him as a result of that offence.
(3) The Court may, as it thinks fit, extend the period within which an application under sub-section (1) or (2) may be made.
14. These sub-sections were amended by Act No. 83 of 1989 which had effect from 1 August 1990. From that date that sub-section (3) as amended provided as follows:
(3) The Court may, as it thinks fit, extend the period within which an application under this section may be made.
The amendment to sub-section (1) is not material for the purposes of the current application. Act No. 83 of 1989 also changed the name of the Act to the Crimes (Victims Assistance) Act.
15. Act number 83 of 1989 also added a new sub-section (4) to section 5 which provides as follows:
(4) Subject to sub-section (3), the limitation on the time for making an application under this section shall apply to and in relation to a person under a disability notwithstanding any provision to the contrary in the Limitation Act.
16. Relevant cases dealing with the question of applications for extension of time, both generally and specifically under the Act include Solomon v Webbe & Anor (1993) 112 FLR 64, Commonwealth v DKB Investments (unreported, Supreme Court, NT, Mildren J, 12 September, 1991), Braedon v Hynes (1986) 4 MVR 521, Napolitano v Coyle (1977) 15 SASR 559, Forbes v Davies & Anor (1994) Aust Torts Reports 81-279, Ulowski v Miller [1968] SASR 277 and Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.
17. Additionally some general comments in relation to interpretation of the provisions of the Act were made by the Court of Appeal in Woodruffe v Northern Territory of Australia (2000) 10 NTLR 52 (“Woodruffe”). In that decision, the Court of Appeal said:
“The purpose or object underlying the Act is to provide compensation to victims of crime. The preamble to the Act is that it is "An Act to provide assistance to certain persons injured or who suffer grief as a result of criminal acts". The Act is remedial and therefore should be construed beneficially, although excepting provisions in a remedial Act do not necessarily have to be given a liberal interpretation.”
18. In summary form, the principals derived from the foregoing and applicable to a determination of the issue in these applications are as follows:
18.1 Whether an extension should be granted involves the exercise of a discretion which, although unfettered, must nevertheless be properly exercised;
18.2 The applicant has the onus to make out a case for an extension of time;
18.3 Good reason must be shown before a court will grant an extension. Whether or not good reason exists is a question to be determined on the circumstances of each case;
18.4 The length of the delay on its own is not a material consideration.
18.5 The 12 month time limit prescribed by the Act runs, notwithstanding the infancy of an applicant, at least in relation to applications for offences committed after 1 August 1990 when Act No. 83 of 1989 commenced.
18.6 The length of the delay and the explanation for the delay are relevant factors;
18.7 Prejudice must be taken into account.
18.8 The hardship which will be caused to the applicant is relevant and is to be balanced against the prejudice which will be caused to the defendant and the extent to which the delay means evidence will become less cogent;
18.9 The conduct of the parties in the litigation is also a relevant factor;
18.10 The respondent has some burden in relation to prejudice i.e., where the basis of the prejudice is peculiarly within the knowledge of the respondent, the respondent has the onus to establish prejudice by positive evidence and the court is entitled to assume that there is no prejudice in the absence of such evidence.
18.11 An application for extension should be declined in the event of “intentional and contumelious default” or “inordinate or inexcusable delay” resulting in a substantial risk that either a fair trial is not possible or that there will be serious prejudice;
18.12 Prejudice should not be assumed by mere lapse of time;
18.13 The application should be refused where actual prejudice of a significant kind is shown;
18.14 Courts generally tend to apply time limits less rigidly where there is no injustice, prejudice or hardship.
19. The background circumstances are relevant in each application. In relation to file 20119339 (involving Ronald Hodgins), the applicant alleges that between April or June 1994 and October 1994 she went to a party at Karama with the second respondent. She there consumed some alcoholic beverages and then went to the home of another cousin where she claims the second respondent had sex with her in the bathroom. She says that she attempted to stop the second respondent but could not because she felt very weak.
20. In file number 20112734 the applicant alleges that the second respondent (Robert Hodgins) sexually assaulted her during the June/July school holidays of 1985. She was approximately 10 years of age at the time and the second respondent was 13 years of age. The applicant alleges that this occurred at Beswick. The applicant alleges that Robert Hodgins committed a number of offences upon her between 1987 and 1989 when she was between five and six years of age but this is not the subject of an application. She repeats this allegation in her affidavits in relation to files 20119331, 20119333, 20119335 and 20200091. On the occasion the subject of this application she claims that Robert Hodgins forced her to put her hand on his penis and to move her hand in an up and down motion while he used his other hand to penetrate her.
21. In file 20119331 the applicant alleges that Robert Hodgins assaulted her some time in 1989 at his home at Karama. She alleges that he touched her on the bottom and vagina and orally and digitally penetrated her and then forced her to perform oral sex upon him.
22. In file number 20119333 the applicant alleges that Robert Hodgins assaulted her some time in late 1988 when she was approximately 13 years of age. The location was 17 Mile Camp. The applicant alleges that the second respondent forced her to put her hand on his penis and that he digitally penetrated her using his other hand.
23. In file 20119335 the applicant alleges a sexual assault upon her by Robert Hodgins in 1987 when she was approximately 12 years of age. This assault also occurred at 17 Mile Camp. She alleges he grabbed her by the vagina and then proceeded to digitally and orally penetrate her. She again claims that he forced her to put her hand on his penis and that he penetrated using his other hand.
24. In file 20200091 the applicant alleges that Robert Hodgins indecently assaulted her between April and November 1989 when she was approximately 14 years of age. This assault allegedly occurred in the lounge room of the home of her aunt in Karama. She alleges that she had been asleep, was woken by the actions of Robert Hodgins in kissing her on the mouth and fondling her breasts. She says that all she can recall after that is that he knelt down next to her shoulder, pulled down his shorts and exposed his erect penis. She cannot recall what happened thereafter.
25. The applicant offers two explanations for the delay. Firstly she says that the matters were put out of her mind, presumably psychologically, until she started to have flashbacks sometime in December of 1999. She claims in each of her affidavits that during one such flashback she realised that the perpetrator was the relevant second respondent. Similarly in each affidavit and in each application she claims that the relevant second respondent’s mother subsequently confirmed to her that the second respondent had made partial admissions to her regarding the offence. Mr Dalrymple who appeared for both second respondents submitted that this statement lacks veracity and that it was extremely unlikely that both of the second respondents had made similar admissions. I think Mr Dalrymple makes quite a valid and significant point. I query whether this state of affairs has arisen from an injudicious use of word processors. There is certainly much similarity between the applicant’s affidavits in each of the matters. I however received no explanation. However that claimed admission, whether credible or not, in my view has no bearing on issues relevant to the extension of time.
26. The psychological blockout until the time of the flashbacks in December 1999 is the explanation, which the applicant gives for not doing anything until that time. Thereafter however a period of approximately 2 years, at least in most of the applications, passes before applications for assistance were filed. The applicant’s explanation for that in each case is that she claims that until early in 2001 she had no knowledge of her entitlement under the relevant legislation. I have covered and discussed her explanation for this in paragraphs 6 to 9 above.
27. If I were to accept these explanations I consider them to be a satisfactory explanation sufficient to grant the extension within the applicable principals. That however still leaves a number of factors to consider. The respective second respondents have provided some contradicting evidence. This comprises the affidavit of Isadora Roberts sworn 22 February 2002 and the affidavit of the second respondent Robert Hodgins sworn 18 February 2002. The former affidavit goes towards challenging the claim of the applicant to knowledge of her entitlement to compensation. The latter affidavit goes to the issue of prejudice.
28. It was submitted on behalf of the applicant that I should not have regard to the affidavit of Isadora Roberts. This is said to be on the basis that the adjournment was confined to providing an opportunity to the second respondents to produce other evidence of prejudice and not necessarily to produce evidence rebutting the basis of the applicant’s current application. I do not consider there to be any basis upon which I should disregard the evidence of Isadora Roberts. In any event I am prepared to consider the material bearing in mind particularly Mr Dalrymple’s late engagement in the matter.
29. Isadora Roberts is the sister of Robert Hodgins. She deposes that the applicant lived with her family from when she was 8 years old and is part of the extended family. Isadora Roberts deposes to having been sexually assaulted in October of 1993. She subsequently made a successful application for Crimes Victims Assistance. She deposes that the fact of the assault upon her and the subsequent successful claim were frequent discussions amongst the extended family and in particular with the applicant. She expresses the opinion that as a result of that she was of the view that the applicant then understood the legal mechanisms in place for victims of a sexual assault to claim compensation and of the necessity to make a timely report to the police.
30. The opinion expressed by Isadora Roberts usurps the role of the Court. The second respondent would have been better served if the affidavit material were confined to the facts supporting the opinion the deponent expresses. I am only prepared to make findings based on the factual material presented. I disregard entirely the opinions stated by that deponent.
31. The applicant has submitted further affidavit material (sworn 4 March 2002) responding to the affidavit of Isadora Roberts. She concedes the bulk of the factual maters deposed to by Isadora Roberts but maintains that that did not lead her to believe that she had any particular entitlement. She supports this, and I think that this is very telling, on the basis that she did not consider that she had any entitlements because of the lapse of time since the offences in her case compared to the greater contemporaneity in Isadora Roberts’ application. That is a very telling point, at least in relation to the offences which preceded 1994. At this point I note that the offence in relation to the claim on file number 20119339 is alleged to have occurred some time between June and October of 1994. Isadora Roberts deposes to having received an assistance certificate in relation to her claim on 27 March 1995 which, if the offence in that matter occurred in April 1994, is one month within the 12 month limitation period prescribed by the Act. If the offence occurred in June 1994 that is three months within the period. If the offence occurred at the later end of the range estimated by the applicant i.e. October 1994, that is still six months within that period. Having regard to the foregoing I am not satisfied in that matter of the explanation for the delay and I have formed the view that in file number 20119339 the extension ought to be refused.
32. The affidavit of Robert Hodgins in relation to prejudice gives evidence of claimed potential financial prejudice if he has to defend these substantive applications against him. He now lives in Toowoomba Queensland where he has a car detailing business. His commitments were entered into before any of the applications were filed and clearly therefore before he had knowledge of any of the applications. He claims that any time required by him to attend at the Northern Territory for preparation for the case and for attendance at the actual hearing would jeopardise his ability to meet his commitments. He claims that his business could not survive his absence as he is the only worker.
33. I accept that some financial hardship would be caused to the second respondent however I do not see how that can be said to be consequent upon the extension. It is directly attributable to the arrangements he has entered and the fact that he resides interstate. That matter is of some relevance but is not conclusive. Moreover I am not satisfied with the extent of the material provided by Robert Hodgins. For example no evidence is given as to what arrangements could be made for any other person to conduct the business on his behalf during his absence. Whether someone might be employed to do so does not appear to have been explored. On the information provided it appears a distinct possibility that his father-in-law could undertake that role. I bear in mind that the actual time that the second respondent else will be required to be absent from his business is likely to be relatively short. I am left to ponder why he has not seen it appropriate to address this possibility in his affidavit.
34. Robert Hodgins also alludes to “some discrepancies with objective facts” which he claims to have found in the material served upon him. Given the onus on him and as he has not seen fit to detail these I can have no regard to that bare claim.
35. He then claims that two witnesses, whom he fails to identify and who he claims he would wish to call, now reside interstate and claims prejudice in that he does not have the resources to meet their expenses to bring them to the Northern Territory for the purposes of the proceedings.
36. These allegations raise more issues than they answer. No details are given as to the evidence that these witnesses would give hence it is impossible for me to assess the relevance of that evidence or to properly weigh up the balance of hardship. Furthermore it is not clear when these persons moved interstate. The longer it has been that these supposed witnesses have resided interstate then the less that any possible prejudice resulting from their change of residence can be attributed to the applicant.
37. Robert Hodgins also claims that his grandfather was an “extremely important witness as regards the incidents alleged to have occurred prior to November, 1989”. He deposes to the fact that his grandfather died in November 1989. Again there is no detail as to the relevance of that evidence. I am not prepared to speculate as to the relevance. In the absence of any more detail I cannot properly assess the balance of hardship. Similarly in relation to the Robert Hodgins’ claim that he would need to make inquiries of person who worked with his grandparents at Beswick. He claims to lack both the time and the resources to do so. Again the absence of detail prevents me from properly assessing this claim to prejudice and I am mindful of the onus is on the second respondent.
38. In paragraph 12 of his affidavit Robert Hodgins alleges that there is some possibility that he may be prosecuted as a result of the evidence that he gives. I consider this to be total nonsense. This does not raise any issues relevant to the issue of the delay or the application for extension of time. Moreover it is immediately inconsistent with his claim in paragraph 2 of his affidavit which operates as a denial of the commission of any offence by him. Assuming he maintains that denial, it is difficult to realistically see how any issues in relation to his evidence will, but for those problems result in his prosecution. Such a nonsensical claim leads me to doubt the veracity of the claim of prejudice.
39. The applicant’s supplementary submissions in response to those of the second respondent raise a valid issue in relation to section 16(1) of the Act as it currently stands and the subsection as it was under the Crimes Compensation Act. There are differences in the wording but for current purposes the differences are not of any consequence. Query in any event whether the amendments do not have retrospective operation. That section provides that the Solicitor for the Northern Territory is entitled to apply to the court to adjourn the current application while a prosecution is pending or is to be commenced. It is not in fact known whether criminal charges will be laid against the second respondents. From a practical viewpoint and notwithstanding the current allegations, it is indeed conceivable and perhaps likely in the circumstances of this case that such proceedings will not in fact be brought. Although there are no time limits for the commencement of such proceedings, I think it is telling that since formal reports were submitted to the police some time in June 2001, there is no suggestion that any charges are to be laid. That is very relevant in terms of a proper assessment of the balance between hardship and prejudice.
40. In short I am entirely unimpressed with the bare claims which Robert Hodgins makes in relation to potential prejudice. There is no evidence over and above bare opinion and speculation and I consider that insufficient to satisfy the onus, which is placed on him.
41. Applying now the stated principals to the facts, I note that the delay in all cases is substantially well in excess of the 12 month period. Even if I was to be of the view that an extension ought to be granted to reflect the period until the 18th birthday of the applicant, the length of the delay is still of the order of seven years over and above the 12 months allowed by the legislation.
42. As I have said in discussing the evidence in greater detail above, the delay is explained by a way of a combination of a claimed involuntary suppression of recall of the various incidents combined with an ignorance of the applicant’s entitlements.
43. I have already dealt with the question of the claim to ignorance of the applicant’s entitlement when discussing the affidavit of Isadora Roberts. I am able to accept the applicant’s explanation in relation to all bar that in file number 20119339. The explanation of the applicant that she was not aware from her knowledge of the claim of Isadora Roberts that that translated into a possible entitlement for her consequent upon the passage of time cannot possibly hold true in relation to that application.
44. In the remaining applications I am prepared to accept the applicant’s explanation. Notwithstanding that explanation, despite claiming to be first aware of her rights in February 2001, the majority of applications were not filed until the end of 2001. However, overall I feel that that delay has been sufficiently and satisfactorily explained on all of the evidence. I think it is telling that after receiving preliminary albeit indirect advice the applicant apparently thereafter promptly consulted solicitors and I find nothing in what occurred thereafter that should be held against the applicant in relation to the issue of the extension.
45. Moreover the hardship to the applicant if the extension is not granted is quite apparent. Her entitlement to this statutory compensation is likewise statute barred. Her entitlement to damages at common law is likewise statute barred even leaving aside questions as to the futility of such an action.
46. I do not consider that the second respondents have satisfied the onus on them to produce positive acceptable evidence of prejudice. Moreover the minimal evidence provided does not show that the prejudice results from the application for extension. In other words it is not clear in the evidence that the second respondents would not have suffered the same type of prejudice had the application been made within time.
47. Mr Dalrymple submitted that the contumely of the applicant’s delay is compounded and aggravated by the gap in time between which the applicant first had knowledge of her possible entitlements under civil law (February, 2001) and the first action taken by her to initiate any investigation by the authorities namely a report to police in June 2001. For current purposes I think the important action required of the applicant after February 2001 was to proceed to instruct solicitors. She did so. A report to the police followed thereafter. According to section 12 of the Crimes (Victims Assistance) Act, a total failure to make a report to the police can, in appropriate circumstances, be excused without disentitling an applicant to compensation. See section 12(b) of the Crimes (Victims Assistance) Act, which came in with the amendments made by Act No. 83 of 1989. See also Woodruffe. I cannot see therefore why a belated report to police should figure against the applicant in the application for an extension.
48. Having said that the failure to report the matter to the police more contemporaneously with the events can be relevant in relation to the guideline of the extent to which evidence is likely to be less cogent as a result of the delay. The second respondents allege that they would, if they had been charged more contemporaneously with the events, be in a better position to fully and properly instruct legal advisers. I have no direct evidence on this point but accept this based simply on proper inferences to be drawn and basic common sense. However, bearing in mind that it is my view that in any event and extension ought to be granted to at least allow for the time until the 18th birthday of the applicant, this issue then is watered down except in relation to the application in 20119339. As I have said I am not prepared to grant the extension in that claim. The time period between the date of offending in each of those matters up to the time of the applicant’s 18th birthday and for a 12 month period thereafter is a considerable period in its own right. The extent to which the evidence might have become less cogent during that period is irrelevant to the issue of the extension of time. I find it difficult to infer the cogency of the evidence would have been further detrimentally affected during the period from that date and until applications were filed and served.
49. The order of the Court therefore is that in file number 20119339 the application for extension of time is dismissed. In all remaining matters the application is granted and time is extended up to the date of filing of the applications on each of the respective files.
Dated this 15th day of April 2002.
_________________________
V M LUPPINO
STIPENDIARY MAGISTRATE