Making someone pay for bullies

By Legal Eagle

In an interesting case, the Victorian Supreme Court has decided a victim of bullying may get compensation for threats to kill made to her by a bully when she was eight years old. The compensation is under the Victims of Crime Assistance Act 1996 (Vic) (‘VCAA‘). Among other things, when they were both eight years old, the bully swore at the victim and insulted her, repeatedly threatened to kill the the victim, threatened to have the victim killed by the bully’s uncles, menaced the victim with scissors, menaced the victim with a broken bottle, and frequently punched her, kicked her, pinched her and spat at her. This was part of a sustained campaign of bullying which spanned years and involved other assaults on the victim by the principal bully and other girls. The victim and her parents complained to the school authorities repeatedly. After the threats to kill, her parents reported the bully’s conduct to the police. As a result, the police attended the school and gave a general anti-bullying presentation. The bullying continued after this until eventually the victim had to leave the school. The victim applied to the Victims of Crime Assistance Tribunal (‘VOCAT’) for financial assistance pursuant to s 50 of the VCAA. VOCAT refused that application, and the victim appealed to the Victorian Civil and Administrative Tribunal (‘VCAT’), which affirmed VOCAT’s finding.

The twist in the tale is that s 344 of the Children, Youth and Families Act 2005 (Vic) provides that ‘[i]t is conclusively presumed that a child under the age of 10 years cannot commit an offence.’ Under the common law, the principle of doli incapax requires that it must be proven beyond reasonable doubt that criminal conduct by a child under the age of 14 years is known to be wrongful by the child, and the starting point for the evidence is a rebuttable presumption in favour of the child.

Section 8(1) of the VCAA provides that financial assistance may be awarded to a “primary victim”. “Primary victim” is defined as “a person who is injured or dies as a direct result of an act of violence committed against him or her” (Section 7(1) of the VCAA).

s 3(1) of the VCAA, an “act of violence” means “a criminal act or a series of related criminal acts”; and a “criminal act” is defined to mean:

An act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of –

(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or

(b) the existence of any other lawful defence; … .

The VCAT Member found that ‘having regard to the tender age of the perpetrators, I cannot be satisfied on the balance of probabilities, that they amounted to criminal acts rather than bullying. I think it unlikely that they were motivated by criminal intent.’

Cavanough J overturned the findings of VOCAT and VCAT. His Honour said at [34] – [35]:

However, although the Tribunal did not say so, I think it probably was in fact satisfied about basic intent. If not, it plainly should have been. The allegations by BVB [the victim] against K [the principal bully], S and J [the other bullies] were allegations of crimes the commission of which do not necessitate sophisticated thinking. Mainly they were allegations of assaults (including batteries) and threats to kill. There was no suggestion that any of the incidents occurred accidentally. The evidence clearly showed hostility towards BVB on the part of K, S and J at the relevant times. With respect, it is not to the point to say, as the Tribunal did, that a threat to kill by a 10 year old child is more likely to be hollow than to be made with actual criminal intent. It did not matter whether K had the means or the intention of actually carrying out her threats, unless her lack of means and intention were apparent to BVB, and there is no suggestion of that. Indeed, the evidence showed that K fully intended by her threats to put BVB in fear of her life (and she did so). Similarly, according to the uncontradicted and accepted evidence, on each occasion when K, J or S physically hurt BVB by punching, kicking, pinching, pushing or scratching her, they obviously intended to do what they did and they obviously intended to hurt BVB.

It is true that the law conclusively presumes that a child under the age of 10 years cannot commit an offence. And it is also true that the common law includes the principle of doli incapax, whereby knowledge of wrongfulness by a child under the age of 14 years is required to be proven beyond a reasonable doubt; and that that principle is supported by a rebuttable evidentiary presumption in favour of the child. However, at least insofar as it relates to age, the very point of that part of the definition of “criminal act” in s 3 of the VCAA that is expressed in hypothetical terms is to require the court or tribunal to disregard any legal principles or protections specially appurtenant to age that would or might apply outside the confines of the VCAA. This the Tribunal failed to do.

Hopefully at least the money which the victim’s family received helped them to cover the expense of sending their daughter to a new school.

13 Comments

  1. Posted March 10, 2010 at 2:35 pm | Permalink

    Interesting.

    “I cannot be satisfied on the balance of probabilities, that they amounted to criminal acts rather than bullying. I think it unlikely that they were motivated by criminal intent”

    Obviously the court has moved on, but I want to have my 2c on this piece of reasoning too. Two notable flaws:
    – the artificial dichotomy between criminal acts vs bullying, which in this case has that feel of ‘I don’t think we’re meant to be involving ourselves in what the kids do in the playground, it’s always been that way’.
    – the conflation of intent to perform the act in question, and intent to ‘break the laws’.

    Anyway, the judiciary has properly sorted this.

  2. Posted March 10, 2010 at 6:05 pm | Permalink

    This is pretty full-on bullying, although it’s interesting that at no point were the parents of the bullies contacted and told of their kids’ behaviour. It varied from family to family, but I often found (from a teacher’s perspective) that telling the families that their child was a bully and what he or she was doing would have the desired effect. The only problem with it was that in families from certain ethnic backgrounds, the parents would then flog their child.

    It did stop what was going on in the schoolyard, however.

  3. Patrick
    Posted March 11, 2010 at 7:15 am | Permalink

    Hopefully at least the money which the victim’s family received helped them to cover the expense of sending their daughter to a new school.

    I am not sure why the school itself isn’t sued for that and more.

  4. Patrick
    Posted March 11, 2010 at 10:55 am | Permalink

    by or from?

  5. Posted March 11, 2010 at 12:16 pm | Permalink

    Latter case was about suing the school (and dept) from what I recall, former was a victims of crime claim.

    “I am not sure why the school itself isn’t sued for that and more.”

    Interesting question this poses- I wonder if the crimes compo scheme allows for recovery, including recovery in tort from parties that might not have been those committing the criminal acts, but who might have contributed to the damage…

  6. Posted March 11, 2010 at 8:10 pm | Permalink

    If schools are held “in loco parentis” can they be prosecuted for negligence in not having clear anti-bullying policies and procedures?

  7. Posted March 12, 2010 at 7:42 am | Permalink

    Cheers LE- I was thinking of the state, having paid out the money. But I guess wallowing on the point a bit longer, if the potential defendant was a public school, the money trail would be a bit circular.

  8. Posted March 12, 2010 at 9:45 am | Permalink

    LE:

    The headline to your post is totally wrong, I’m afraid.

    The VCAA doesn’t make bullies pay, it establishes a scheme where the state will pay. It is expressly not meant to limit civil remedies (see s 1(3) which follows from section 1(1) and (2) which you quote). There is also an interaction with other compensation available – see ss 13 and 16: query whether under section 16 the Tribunal has to start at a figure that may not be greater than the maximum under section 13 and then deduct other compensation, or whether it can determine any amount so long as, having then reduced it under s 16, the final amount is under the maximum under s13. I haven’t time to check, but I very much guess the former.

    If you look at s 62 you will see that you have in effect to make an election as to whether to sue the criminal or (in this case, there-but-for-incapacity criminal) since if you subsequently recover from the criminal you have to pay the money back.

    However, that’s not the case if you can sue someone else. The girl could still sue the department. I haven’t tried to work out if the department in that case if found liable would be entitled to a notional credit for victim’s compensation money already received.

    The advantage of Victims Compensation is that it doesn’t matter if the perpetrator or other tortfeasor is skint or cannot be found.

    In NSW there is a specific focus on making perpetrators pay, though the success of recovery is generally not. The biggest claimants on victims’ compensation funds by a very long way are police.

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