CITATION: James Masters v Northern Territory of Australia [2006] NTMC 038

PARTIES: JAMES MASTERS

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: Local Court

JURISDICTION: Crimes ( Victims Assistance)

FILE NO(s): 20427010 & 20247008

DELIVERED ON: 29th April 2006

DELIVERED AT: Darwin

HEARING DATE(s): 20th April 2006

JUDGMENT OF: Judicial Registrar Fong Lim

CATCHWORDS:

Crimes Victims Assistance – Failure to assist police – Section 12(c) Crimes Victims Assistance Act.
Woodruffe v Northern Territory of Australia [2000] NTCA 8
Wolfe v Northern Territory of Australia [2002] NTSC 26
Geisler v Northern Territory of Australia [1996] NTSC 19
Longmair v Northern Territory of Australia [2006] NTMC 5
Stratford v Northern Territory of Australia [2006] NTMC 4
REPRESENTATION:

Counsel:
Applicant: Mr Johnson
Respondent: Ms Tregear

Solicitors:
Applicant: Priestleys
Respondent: Hunt & Hunt

Judgment category classification: C
Judgment ID number: [2006] NTMC 038
Number of paragraphs: 39

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20427010 & 20427008

BETWEEN:

James Edwards Masters
Applicant

AND:

Northern Territory of Australia
Respondent

REASONS FOR JUDGMENT

(Delivered 28th April 2006)

Judicial Registrar Fong Lim:

1. The Applicant makes application for an Assistance Certificate pursuant to section 5 of the Crimes (Victims Assistance) Act. The Respondent argues that even if the Applicant were a “victim” pursuant to the provisions of the Act he must be excluded pursuant to section 12(c) of the Act.

2. Both parties concentrated their submissions on the section 12(c) issues even though there was no concession that the Applicant was indeed a victim pursuant to the provisions of the Act.

3. To be eligible for an assistance certificate a person has to be a “victim” pursuant to the act, “victim” is defined as:

“ a person who is injured or dies as the result of the commission of an offence by another person”

4. The Applicant’s evidence is that he was the victim of two assaults while an inmate of Berrimah Prison resulting in physical and mental injuries. The respondent’s medical records from the prison indicate that the Applicant did receive injuries on the days in question but provided an alternative explanation for the injuries.

5. It is entirely believable that the Applicant was the subject of assaults by other inmates and that he did not report this to the authorities for fear of reprisal. Although he did report the first assault to the police but decided not to go ahead with the complaint. I accept the explanation the Applicant gives of the injuries he has sustained and find that he was a victim in terms of the Act and could be eligible for an Assistance certificate to issue in his favour subject to the operation of section 12(c).

6. Section 12(c) of the Act provides:

“12. Assistance certificate not to be issued in certain circumstances
The Court shall not issue an assistance certificate –

…………………………………………………………..

(c) where an applicant or victim has failed to assist the Police Force in the investigation or prosecution of the offence;”

7. The courts have been required to interpret this section on many occasions and the following principles have been distilled over the years:

(a) The Act is remedial and should be construed beneficially although excepting provisions in a remedial Act do not necessarily have to be given a liberal interpretation (Woodruffe v Northern Territory of Australia [2000] NTCA 8)

(b) The Applicant need not take a proactive role in the investigation or prosecution (Wolfe v Northern Territory of Australia [2002] NTSC 26)

(c) The Applicant’s role is secondary to the police ( Wolfe’s case)

(d) The onus is upon the Respondent to prove the failure to assist (Wolfe’s case).

(e) Prejudice to police enquires is properly considered under section 12(c) (Geisler v Northern Territory of Australia [1996] NTSC 19

8. The First Assault – the Applicant was assaulted on the 13th of January 2004 while in prison. He reported the assault to the prison authorities and spoke with the Police on the next day. The Applicant accepts that he did not really want to proceed with charges because of the fear of repercussions.

9. The “Initial Response Closure” contained in the police records indicate that the Applicant did not know who the offenders were as he was asleep at the time. The Applicant advised the police that he did wish to go ahead with complaint but wanted to speak with legal aid first.

10. The Applicant is then recorded as advising the police that he didn’t wish the police to take any further action. The documents attached to the Applicant’s affidavit do not show the date of that advice because it is obscured by a hole punch hole. It is evident that it was some time after the police officer concerned came back from leave in January of 2004.

11. The Applicant later gave a fuller statement to the police in NSW on the 22nd of September 2004 after he had contacted his present solicitors regarding a claim under the Crimes (Victims Assistance) Act. In that statement the Applicant describes the assailants as to their appearance and names one of them. The subsequent investigations undertaken by the police ended in the offenders not being identified.

12. It is clear that the Applicant knew who had assaulted him by sight. It is clear that these people were sharing a cell with him as the incident happened after lock down. The Applicant’s general descriptions of young aboriginal males dressed in green t shirts and blue shorts ( the prison uniform) may seem to be an attempt to assist the police to identify the assailants but really didn’t assist at all because they were too general eg the description of the clothes was the prison uniform. He did give the name of one of the assailants and that name proved to be unhelpful. The Applicant doesn’t indicate how long he had been sharing the cell with these people and consequently how well he knew them.

13. The Respondent argued that the Applicant knew much more about the assailants than he was telling the police.

14. The statement given to the police on the 22nd of September 2004 indicates that there were other people who could have seen who the Applicant was sharing the dorm with. It is also clear from that statement that there were others who could have helped to identify the assailants at the time. The Applicant describes K block as having only one dorm and that there were regular medical checks at 5:00pm every day. He saw the medical officer that day and told her at the door of his cell about the accident with the assailants looking on.

15. It is clear that the authorities knew of the assault and were concerned enough about the Applicant’s safety to move him into a single cell the next day. The Applicant also says that the inmates who attacked him were also moved that day. In his statement of the 1st of October 2004 the Applicant states:

“I was then placed in a single cell by myself. I saw all six males get moved out of K block”

16. The Applicant initially fail to advise the authorities that he had been assaulted and the statement he then gave to the police was misleading. He stated he didn’t see who the assailants were therefore even if the police had been able to identify the inmates who lived in the dorm they would not have been able to identify which of them assaulted the applicant.

17. It was not until 8 months after the incident the Applicant gave a fuller statement indicating that all of the inmates who shared the dorm attacked him, however by that stage the Police were unable to identify who was living in the dorm at the time because of the way the records were kept in the prison. In an internal memorandum the police record:

“ It was also established that computer records held at the prison relate only to individual prisoners and is not specific to blocks within the prison. Therefore without knowing the identity of the offenders, prison staff are unable to advise who was held in block “K” or “L” at the time of the assault.”

18. If the police had been told the day of the attack what the Applicant now says happened then the prison officers would have been able to identify the inmates who were in the dorm on K block before they were moved.

19. It is my view that if the Applicant had reported the incident truthfully at the time the police and the prison authorities could have easily identified the people who shared the dorm with the Applicant. If the Applicant had reported the incident truthfully then the Police would have been able to interview the Applicant’s dorm mates the next day. It is the Applicant’s evidence that all of the people sharing the dorm with him attacked him and therefore identification of the inmates responsible would have been simple given the incident occurred after lock down.

20. The Applicant’s deliberate attempt to hide the truth from the police is in my view a failure to assist within the terms of section 12(c.)

21. There is clear prejudice to the Police enquires in relation to the first assault by the Applicant failing to tell the truth about the assault in the first place and the Applicant advising the police that he did not wish to continue with the complaint ( see Longmair v Northern Territory of Australia [2006] NTMC 5).

22. Given that prejudice the Applicant should be excluded from the granting of an assistance certificate in his favour in relation to the first assault.

23. Second assault- The Applicant also states that he was the victim of a further assault on the 4th of April 2004 when he was still an inmate at Berrimah Prison. The Applicant left his dorm to fill up his water bottle at a bubbler. There were 15 people hanging around on the outside of the cells near the bubbler. After filling his bottle he moved away from the bubbler and the next thing he felt was a hit to his face. The Applicant said he held the right side of his face and did not look around to see who had hit him. The Applicant says he did not look around because if he did he knew he would be hit again.

24. The Applicant then returned to his dorm but quickly realised that he was badly injured so he reported to the medical centre and from there was transported to the hospital. He advised the nurse at the medical centre and the hospital staff that he had been hurt playing football and maintained that story until he gave his statement to the Police in New South Wales after being released from prison. The reason given again is because the Applicant feared reprisals and while I accept that is a good reason for failure to report to the police ( Section 12(a) ) it cannot be considered when deciding whether the Applicant should be excluded under section 12(c) of the act.

25. The Respondent submits that the evidence suggests that the Applicant did in fact know who assaulted him but has still chosen not to name them. The Respondent points to paragraph 16 of the Applicant’s affidavit where he states:

“When I returned to Berrimah Gaol I saw the offenders on a daily basis although they left me pretty much alone.”

26. In his statement to the New South Wales police the Applicant says at paragraph 25:

“ When I arrived back no one approached me and said they were the person who hit me. I still to this day do not know who assaulted me.”

27. The Applicant is continuing to give misinformation regarding the assault it is clear from his evidence in paragraph 16 of his affidavit that he could identify the offenders by sight and had he reported to the incident straight away and advised the authorities who those people were by pointing them out the police may have been able to prosecute the offenders.

28. What in fact happened was that the Applicant continued to advise the police that he had no idea who these people were which was clearly not true. While the law does not require the Applicant to be proactive in his assistance to the police ( Wolfe v Northern Territory of Australia [2002] NTSC 26) can he cannot deliberately withhold information ( see Stratford v Northern Territory of Australia [2006] NTMC 4). The Applicant should have advised the police that he could identify his possible assailants by sight and he should have done so immediately so that investigations could have been undertaken straight away. After the worker’s statement to the NSW police an investigation was undertaken by the authorities however without any assistance from the worker to identify the offenders they could not be identified and therefore no prosecution could take place.

29. While the Respondent has not produced to the court any evidence of prejudice to the investigation or prosecution of the assault arising out of the delay and Applicant’ deliberate misinformation about the incident to the authorities at the time, it is safe to assume that had the assault been reported immediately the police would have had more of a chance to identify the offenders. Given the transient population in prisons it also is safe to assume that there is more of a chance of identifying an offender if the assault is immediately reported.

30. Any identification of the offenders would have had to rely on the Applicant pointing them out, as he says he did not know their names, which he would not do while he was in prison and clearly could not do in October of 2004 because he was no longer in the prison.

31. On the basis of the above I find that the Applicant also failed to assist the investigation of the second offence by withholding information from the police and therefore must be precluded from the issue of an Assistance certificate in his favour.

32. Quantum – if I am wrong about the application of section 12(c) in these proceedings then as the Applicant was clearly a victim of two separate assaults and has suffered injury arising out of the assaults.

33. The first assault: the Applicant suffered a cut above his eyebrow and some bruising to his left eye and other parts of his body. There was no ongoing effect of that assault and suffered headaches for about 2 weeks after the assault. The Applicant also suffered some fear of a repeat of the assault. These injuries are relatively minor and I would have awarded the Application $800 for pain and suffering.

34. The second assault : it is clear that the physical injuries and mental distress sustained out of this assault were more severe than the first injury. The Applicant had to undergo an operation to and have some plates inserted into his face which plates are still in place and cause the Applicant pain should they be pressed or knocked. The Applicant states he had severe pain for approximately 3 months subsequent to the operation however the medical records from the Berrimah prison only indicate that he was given paracetamol only twice after the operation. There may have been stronger medication given to him while in Yatla for the two weeks after the surgery however there is no evidence of this. Neverthless I accept that the Applicant would have suffered some severe pain immediately after the operation and for the couple of weeks of recovery time but it is clear when he came back to Berrimah he did not complain too much.

35. There is clear evidence in the Berrimah gaol records that the Applicant was on soft foods for about a month. There is also evidence from Dr Canon, an Oral & Maxillofacial Surgeon, that the Applicant’s teeth do not meet properly and that the Applicant’s altered sensation in his cheek will be a permanent.

36. The Applicant claims that he suffers headaches and lethargy since the assault however there is no medical evidence to support the claim that those symptoms were caused by the assault.

37. I accept that the Applicant would have been very anxious about further attacks while in prison and that he suffered some disturbed sleep (that is confirmed by the medical records kept by the prison) and that he would have suffered some mental distress arising from this offence.

38. Had the Applicant not been excluded by the operation of section 12(c) I would have awarded him the sum of $12000 for pain and suffering and mental distress with $4500.00 for medical expenses to remove the plates from his face.

39. Orders : I therefore order:

39.1 In the application 20427010

(a) the application for assistance is dismissed

(b) costs reserved

39.2 In the application 20427008

(a) the application for an assistance is dismissed.

(b) cost reserved

29th day of April 2006
_________________________
Tanya Fong Lim
JUDICIAL REGISTRAR