Alfonso v Northern Territory of Australia & Anor [1999] NTSC 117

PARTIES:	AUDREY ALFONSO 

	v

	NORTHERN TERRITORY OF AUSTRALIA	AND THOMSPON JAGAMARA DRIVER

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	40 of 1999

DELIVERED:	29 October 1999

HEARING DATES:	20 October 1999

JUDGMENT OF:	MILDREN J

CATCHWORDS:
Appeal - criminal law - crimes victim's assistance - did "injury" occur as 
defined by way of bodily harm, mental injury and shock.
Appeal - criminal law - courts can have regard to definition of term in one 
Act to a certain meaning of same term in another where Acts are in para 
materia - Criminal Code not in para materia with Crimes Victims 
Assistance) Act - is remedial legislation and ought to be given a liberal 
and beneficial construction.
Appeal - criminal law - meaning of "bodily harm" in definition of "injury" 
defined as meaning "bodily harm and includes pregnancy, mental 
shock and nervous shock".
Appeal - criminal law - expert evidence of both physical and mental injury - 
expert evidence as to difficulty an older Aboriginal woman would 
have communicating experiences of a rape to young woman of different 
cultural and language background.
Appeal - criminal law - unnecessary to show mental or psychiatric illness - 
mental injury includes emotional upset when causes actual injury to 
physical or mental health beyond mere grief.

Legislation
1.	Local Court Act 1989: s19(1)
2.	Crimes (Victim’s Assistance) Act: s5, s7, s6
3.	Criminal Injuries (Compensation) Ordinance 1976: s2

Texts
1.	Pearce and Geddes, 3rd Edition, Statutory Interpretation in Australia.

Cases
1.	Chabrel v Northern Territory of Australia and Mills (1999) NTSC 113, followed
2.	Wayne v Boldiston (1992) 85 NTR 8, discussed
3.	Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29, discussed
4.	Imperial Chemical Industries of Australia and New Zealand v Federal Commissioner of Taxation (1972) 46 ALJR 35, (1972-73) ALR 715, discussed
5.	M. Collins & Son Pty Ltd v Bankstown Municipal Council (1958) 3 LGRA 216, referred
6.	R v Morrison, ex parte West (1998) 2 Qld R 79, applied
7.	Reg v Fraser (1975) 2 NSWLR 521, followed
8.	S v Turner (1979) 1 NTR 17, adopted
9.	LMP v Collins and Others (1993) 112 FLR 289, applied
10.	J v Northern Territory (unreported, Local Court, N.T., 2 August 1991), applied

REPRESENTATION:

Counsel:
	Appellant:	Mr Lawrence
	Respondent:	Mr Anderson

Solicitors:
	Appellant:	Bowden Collier Deane
	Respondent:	Povey Stirk

Judgment category classification:	B
Judgment ID Number:	Mil99206
Number of pages:	12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
No. 40 of 1999

Alfonso v Northern Territory of Australia & Anor [1999] NTSC 117

	BETWEEN:

	AUDREY ALFONSO
	Appellant

	AND:

	NORTHERN TERRITORY OF AUSTRALIA AND THOMPSON JAGAMARA DRIVER
		Respondents

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 29 October  1999)

Mildren J
[1]	This is an appeal pursuant to s19(1) of the Local Court Act 1989 from a decision of Ms Deland SM who refused to grant an application for an assistance certificate pursuant to s5 of the Crimes (Victims Assistance) Act.
[2]	The notice of appeal refers to the first named respondent as The Solicitor for the Northern Territory.  Some of the documents lodged (including the outline of argument for the first named respondent) refer to the second respondent as Northern Territory of Australia.  S7 of the Act provides that the Crown and the offender are to be parties to the proceedings.  S6 requires the application to be served on the Solicitor for the Northern Territory.  No objection was raised as to the misnomer.  Clearly the intention was to bring the application against the Crown in the right of the Northern Territory.  I have therefore amended the title of the appeal to substitute "Northern Territory of Australia" for "The Solicitor for the Northern Territory".
[3]	On 14 May 1997, the appellant, who is a traditional Aboriginal woman then aged 57 years, was raped by Thompson Jagamara Driver (the offender) at her home – a tin shed at Kargaru Camp, Tennant Creek.  At the time, she did not know the identity of the offender, another Aboriginal.  She later told her niece what had happened.  The matter was reported to the police and the appellant was taken to the Tennant Creek Hospital where she was medically examined.  Subsequently, the offender was charged and after a committal hearing, he was dealt with by this Court.  On 27 February 1998, this Court convicted him of attempted rape and sentenced him to a term of imprisonment.
[4]	At the hearing before Ms Deland SM, the learned Magistrate accepted that on the evidence placed before her, the appellant had in fact been raped.  That finding is not now challenged.
[5]	The appellant's evidence before the learned Magistrate consisted of: a certificate of conviction (which was tendered but not marked as an exhibit – the certificate is nevertheless on the Local Court file); a number of affidavits (principally those of the appellant); and a number of letters, medical reports and a psychological report.  No witnesses were called to give evidence or to be cross-examined.  No evidence was led on behalf of the respondents.  The learned Magistrate held that she was unable to be satisfied that the offence had resulted in any injury to the appellant, and dismissed the application.
[6]	The Notice of Appeal, as amended, alleged that the learned Magistrate erred in law in not finding that the appellant suffered an "injury" as defined and that the learned Magistrate should have found that the appellant suffered bodily harm, mental injury and shock.  It is not necessary to consider the other grounds of appeal.  The situation in this case is that the facts are not in dispute.  If the appellant can show that the evidence can reasonably lead to but one conclusion, viz., that the case falls within the meaning of "injury" in the statute, and that no different conclusion is reasonably possible, that is an error of law:  see Chabrel v Northern Territory of Australia and Mills (1999) NTSC 113, at para [19], and the authorities therein referred to.
[7]	"Injury" is defined by s4(1) to mean "bodily harm, mental injury, pregnancy, mental shock or nervous shock", but does not include an injury arising from the loss of, or damage to, property (unless loss or damage is the result of an offence relating to that property).  Mr Lawrence, counsel for the appellant, submitted that the uncontested evidence established that the appellant had suffered both bodily harm and a mental injury.
[8]	Counsel for the respondent, Mr Anderson, submitted that the expression "bodily harm" should be given the same meaning as it is given by the definition section (section 1) of the Criminal Code, viz., "any physical injury that interferes with health".  Mr Anderson referred me to Wayne v Boldiston (1992) 85 NTR 8, a decision of my own, where I examined the meaning to be given to that definition.  Mr Lawrence submitted that the meaning to be given to the expression "bodily harm" in the Code is more restricted than the meaning to be given in the Crimes (Victim Assistance) Act, but that, in any event, the appellant satisfied the criteria discussed in Wayne v Boldiston, at p 14.
[9]	There are some circumstances when courts have resorted to definitions of a term in one Act to ascertain the meaning of the same term in another Act.  In Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29, Latham CJ, with whom Rich J concurred, referred to the definition of the word "mine" in the Mines Act (Victoria) to show that the words "mining operations" in s78 of the Income Tax Assessment Act were not limited to excavation or underground mining and may include the sluicing and treatment of tailings:  see also Imperial Chemical Industries of Australia and New Zealand v Federal Commissioner of Taxation (1972) 46 ALJR 35 at 41, per Walsh J, and, on appeal, (1972-73) ALR 715 at 730, per Gibbs J.  However, as Pearce and Geddes, Statutory Interpretation In Australia, 3rd Edition, at 54, point out, "whilst definitions of terms in like Acts must be viewed with caution, they should not be entirely disregarded".  The question is whether the Acts are "like Acts" or, if the Acts were in para materia.  As Sugarman J pointed out in M Collins & Son Pty Ltd v Bankstown Municipal Council (1958) 3 LGRA 216, interpretation clauses very often involve some artificial extension or limitation of the natural meaning of a word or expression for the purposes of the statute.
[10]	It is difficult to see how it could be suggested that the Criminal Code and the Crimes (Victims Assistance) Act are "like Acts" or Acts in para materia.  The latter Act is remedial legislation, designed to provide compensation to the victims of crime.  The Criminal Code purports to be a codification of the criminal law.  
[11]	Not all statutory provisions similar to the Crimes (Victim Assistance) Act in other jurisdictions use the expression "bodily harm", although some do, or have done so.  In Queensland, at least until 1995, the relevant provisions were included in the Criminal Code (Qld), Chapter LXVA, and the definition of "injury" in s663A included "bodily harm" which was in turn defined by s1 to mean "any bodily injury which interferes with health or comfort".  In R v Morrison, ex parte West (1998) 2 Qld R 79, the Court of Appeal considered that the statutory definition limited, not extended, the meaning of "bodily harm".  In New South Wales, the relevant definition of "injury" under s437(4) of the Crimes Act and s2 of the Criminal Injuries Compensation Act meant "bodily harm and includes pregnancy, mental shock and nervous shock".  In Reg. v Fraser (1975) 2 NSWLR 521, Wootton J held, at 525-6, that:
...these words are intended to embrace all forms of personal injury, whether physical or psychological.  The words "bodily harm", even when accompanied by the adjective "actual", are themselves understood to include any hurt or injury calculated to interfere with the health or comfort of the victim.  They have been specifically held to include an injury to the victim's state of mind:  R v Miller [1954] 2 All ER 529
...In short, it seems to me that under this section compensation for injury can be just as comprehensive as damages for personal injury in the law of torts...
[12]	In S v Turner (1979) 1 NTR 17, Muirhead J considered the meaning to be given to the expression "bodily harm" as it appeared in the definition of "injury" in the fore-runner to the Crimes (Victims Assistance) Act, viz., the Criminal Injuries (Compensation) Ordinance 1976.  At that time, the definition of "ínjury" was defined by s2 as meaning "bodily harm and includes pregnancy, mental shock and nervous shock".  At that stage, the Criminal Code (N.T.) had not been enacted.  His Honour followed and adopted the approach of Wootton J in R v Fraser, supra. 
[13]	In my opinion, there is no justification for giving the expression "bodily harm" the restricted meaning given to that expression in the Criminal Code.  The preferred meaning is that explained by Wootton J in R v Fraser as expounded by Muirhead J in S v Turner.  This follows from a number of considerations.  First, the words "bodily harm" were so interpreted in similar Acts not affected by the definition in the Code.  Secondly, the Crimes (Victims Assistance) Act and the Criminal Code are not similar Acts and are not in para materia.  Thirdly, being remedial legislation, the Act should be given a liberal and beneficial construction.
[14]	Mr Lawrence submitted that the mere fact that the appellant was raped, was in itself bodily harm.  In S v Turner, supra,  Muirhead J said, at p20:
It seems to me that the act of rape, sexual intercourse without consent, must be taken into account and regarded in itself as "bodily harm" compensable as injury.  To hold to the contrary would have the result in some cases of denying other than nominal compensation to those who have been victims of one of the worst crimes of violence known to the criminal law.  So in assessing compensation in this case I pay regard to the violation of this young woman's body during the commission of the offence and I categorize such violation as "bodily harm".
I respectfully agree.
[15]	In this case, in addition to the mere finding that the appellant was raped, there was in fact other evidence of bodily harm.  The circumstances of the rape, according to the appellant's evidence, were that as she entered her home, she was grabbed at by the offender.  She told the offender to go away, that she was tired and wanted to sleep.  She lay down on her bed.  The offender then pulled his pants down,  climbed onto the bed, and pulled her skirt up.  She resisted him and yelled out for help.  He pulled her pants down, put his hands around her neck and over her mouth, and told her to shut up.  He then had vaginal sex with her.  She was left crying and upset, but because of her intoxication, fell asleep for a short time.  She said that it hurt inside her for a week afterwards.  On examination at the hospital, only an hour after the rape, the examining doctor, Dr Hand, observed that she had a sore shoulder, which was markedly tender to touch; the front part of her neck was swollen and also markedly tender; there was marked reduction in the range of movement in her right shoulder; there was soreness in the right arm, and a very small superficial laceration to her right check.  The following morning, Dr Hand said that the neck was still swollen and tender.  The report of a psychiatrist who examined the appellant six months later, noted that she had:
...diminished movement on her right side, particularly around the shoulder.  She often rubbed her right shoulder with her left hand.  When I asked about her shoulder problems she hinted that this was a product of being grabbed around the neck apparently at the time of the assault in question.
[16]	The learned Magistrate said, in her written reasons, that the basis for the claim was that there was a mental injury.  Her Worship did not consider whether or not there was bodily harm.  It is clear that counsel who appeared for the appellant submitted that she had suffered bodily harm.  I note that her Worship was not referred to S v Turner, supra.  Perhaps, had counsel in the court below referred her Worship to that case, the result would have been different.  Nevertheless, it is clear that the evidence established that the appellant suffered bodily harm and her Worship erred in refusing her a certificate.
[17]	Mr Lawrence also submitted that there was evidence that the appellant suffered a mental injury.  I was referred by counsel to a number of authorities which examine the meaning to be attributed to "mental injury" as it appears in the definition of "injury".  It is not necessary to review them, as I have recently referred to the relevant authorities in Chabrel v Northern Territory of Australia and Mills, supra, at paras [12] and following.  The evidence of a mental injury is to be found in the report of a psychologist, Ms Jane Vadiveloo, who referred to the appellant being:
...visibly upset when she spoke of the rape.  She became silent and teary and it was very difficult for her to communicate her experiences.  At times she gave a brief laugh of embarrassment as she explained what she experienced...Ms Alfonso expressed her fear at the time of the assault when she was grabbed by the man.  She also explained her ongoing fear which is acute at night time.  She indicated that she continues to think about the event every day.
Ms Vadiveloo considered that:
She presents with clear indications of trauma as reported in her heightened fear of night time since the event, and her repeated thoughts of the event on a daily level...There does not appear to be indicators for depression or severe anxiety...She presents with post-trauma symptomology as a result of being raped...She continues to feel intense emotions of sadness and shame when discussing the event...The assault that she experienced is likely to result in persistent fears and sensitivities, particularly at night time.
[18]	The evidence before the learned Magistrate contained other material which was admittedly not helpful.  The report of the psychiatrist, Dr Jackson, indicated that the appellant had no memory whatever of the rape or any surrounding details, and spoke of the difficulties he had in elucidating any useful information from her.  It is not surprising that a relatively elderly Aboriginal woman, living a traditional life-style and whose command of the English language is limited, would have difficulty discussing this with a white, male doctor.  This was commented upon by Ms Vadiveloo as well, when she said in her report:
Age, cultural and language issues limit the type and depth of information shared in interviews such as this.  In this circumstance an older woman was having to communicate her experiences surrounding a rape to a younger woman (the writer) from a different cultural and language background...The use of formal assessment tools and diagnostic criteria for the assessment of...disorders is not culturally applicable in this instance.  
[19]	Her Worship does not seem to have rejected the claims because of the inability of the appellant to describe her experiences to Dr Jackson.  Her Worship seems to have accepted Ms Vadiveloo's report.  She said:
Whilst I accept, she may have some heightened awareness, particularly at night, an an (sic) ongoing recollection of the event, I am not satisfied without further symptoms, that that constitutes a "mental injury".
[20]	I consider that the learned Magistrate's conclusion is erroneous.  In Chabrel, supra, paras [14] to [17], I followed the South Australian authorities which held that it is not necessary to show that the appellant suffered any mental or psychiatric illness, and that mental injury includes emotional upset if it caused actual injury to physical or mental health going beyond mere grief.  Clearly the evidence in Ms Vadiveloo's report fits this description.
[21]	The appeal must be allowed.  As the facts are not in dispute, I consider that I should myself decide upon the quantum of the certificate rather than remitting the matter to the learned Magistrate.
[22]	The appellant was aged 57 years at the time of the rape.  She is married with a number of children and grandchildren.  She lives a traditional lifestyle.  Her first language is Alyawarr.  She has lived in the Tennant Creek area most of her life.  She presented to the psychologist as a quiet and dignified woman.  The rape was violent, although it was not the most violent of its kind.  She was placed in fear.  She suffered a terrible affront to her dignity and invasion of her privacy, followed by humiliation and hurt, and ongoing shame and fear which has remained and is likely to result in persistent fears and sensitivities, particularly at night time.  In the assault she suffered injuries to her shoulder and neck, and mild pain in her right arm, and a small laceration to her face.  The injury to her shoulder has produced some limitation of movement to her right shoulder which was still evident six months later, although, there is no evidence that the injury to the shoulder is permanent. She was also tender in the vaginal area for about a week after the rape. No allowance under the act is permitted for aggravated or exemplary damages (as to which, see LMP v Collins and Others (1993) 112 FLR 289 at 304) and leaving those factors aside, I am satisfied that an award of damages would, particularly in view of her ongoing mental injury, exceed $25,000. In LMP v Collins, supra at p309, Kearney J adopted an observation of Mr Gray SM in J v Northern Territory (unreported, Local Court, N.T., 2 August 1991):
In this, as in most, if not all, rape cases, the emotional and psychological impact was infinitely more serious than the short term physical impact and trauma.  Indeed the true trauma is of psychological, emotional and mental nature...
In this case there was also some bodily harm which was of more than a transient nature, but otherwise this is an apt description.  I also note the observations of Wootton J in R v Fraser, supra, at 523-525 adopted by Kearney J in LMP v Collins at pp 310-311, especially where the authorities discuss the difficulties of witnesses being able to express in their own words the nature and extent of their psychological injury, and the need for the court to approach the task "in a broad and largely arbitrary or subjective assessment of what, according to current community attitudes, would be regarded as reasonable compensation".
[23]	I therefore order that a certificate be issued for the sum of $25,000.  Pursuant to s8(10) of the Act, I further order that the respondents pay the appellant's costs and disbursements in the Local Court action to be taxed by the Local Court, and that the Northern Territory of Australia pay the appellant's costs of this appeal to be taxed by the Master.
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