S.65 Guidelines - Criminal History of Applicant (8 June 1999)
Victims Compensation Act 1996.
Guidelines pursuant to section 65 of the Act.
In guideline of 9 February 1998 I indicated that the guidelines used in England might be considered for use when dealing with applications under the 1996 Act subject to the matters to which I drew attention.
The final paragraph of that guideline indicated that the criminal history of an applicant could be taken into account pursuant to section 30(1)(e) and reference was made to the decision of Mahoney DCJ in the appeal of Hillsley – a decision on section 20(1)(e) of the 1987 Act.
The decision in Hillsley was later in time to that of Costin where Moore DCJ held that the criminal history of a victim does NOT come within section 20(1)(e) of the 1987 Act.
Because of the dichotomy of approach in the District Court, the Tribunal followed Hillsley. The advocates now tell me that the judges of the District Court are now following Costin – that is that the criminal history of an applicant does not fall within section 20(1)(e). In Costin Moore DCJ said that section 20(1)(e) should be limited to matters of real relationship (whether direct or indirect) to
(a) the events of the happening of the injury or
(b) the investigation of those events, or
(c) the orderly preparation and conduct of the application by the victim applicant or respondent such as co-operating in medical examination (section 18A of the Act).
I apprehend that the District Court would not hold that section 30(1)(e) entitles an assessor/Tribunal to take into account the criminal history of an applicant. Section 30(1)(a) does entitle the criminal activity of an applicant to be taken into account but only where that activity directly or indirectly contributed to the injury or death sustained by the victim.
Chairperson
8 June 1999.
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