The appellant’s submissions should not be accepted, for the following reasons.
Under s 3 of the Act, the definition of ‘compensation award’ is to be applied in s 42 unless the contrary intention appears. The suggestion that the term ‘compensation award’ in s 42(3) should be read as meaning a ‘notional award’ or an ‘assessment award’ faces two fundamental obstacles. First, it involves reading words into s 42(3) which are not there. Secondly, there is no inconsistency in using the defined term ‘compensation award’ in s 42(3). On the contrary, that is the obvious and natural meaning to be given to that term in s 42(3) having regard to the text and structure of the Act as a whole.
In terms of the structure of the Act, s 36 – s 40 provide a range of circumstances where there is a prohibition on the making of a ‘compensation award’. Those provisions operate in the circumstances specified to preclude the making of any ‘compensation award’ at all. Their location within pt 4 tends to confirm that the assessor is not required to consider the question of deductions under s 42 unless and until he or she has determined whether or not a ‘compensation award’ should be made and if so the amount of any such award.
Also, the Act distinguishes between a ‘compensation award’, on the one hand, and the payment of any compensation awarded under the Act, and an amount of compensation ‘awarded’ to the victim under the compensation award, on the other: s 46 and s 68(1)(d). These provisions confirm that the broad structure for payment of compensation under the Act involves, first, the determination of whether, and if so in what amount, a ‘compensation award’ may be made; secondly, the deduction of any amounts from that ‘compensation award’ required under s 42; and thirdly, the payment or ‘awarding’ of an amount of compensation under the Act. It is only the third figure which is the subject of the charge on consolidated revenue. The appellant’s submissions conflate these three steps and, in substance, treat a ‘compensation award’ under s 30 as the amount to be paid or awarded as compensation under the Act, subject only to s 31(1), rather than the amount upon which other provisions operate before a final amount of compensation is determined and then paid or ‘awarded’ (s 46).
Further, there is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) ‘compensation award’ in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) ‘any amount’ that the victim has received. The words ‘injury or loss’ cannot reasonably be interpreted as signifying that the ‘compensation award’ is to be disaggregated into a notional award for ‘injury’, and a notional award for ‘loss’, for the purposes of the deduction required by that subsection (see written submissions pars 30 – 31). It is true that s 42(2) refers only to ‘loss’, but that is because it is specifically addressing a particular category of insurance contract. It provides no foundation for regarding a ‘compensation award’ in s 42(3) as a notional award, and for disaggregating the notional award into different notional sub-awards for injury and loss. The words ‘injury or loss suffered by a victim or a close relative of a deceased victim’ in s 42(3) reflect the language of s 30 (and in particular s 30(1) and (3)). The language is not tautological, but is evidently used to make it plain that s 42(3) is addressing a ‘compensation award’ made under s 30 (read with s 31).
Also, the aggregation to which s 31(1) refers is the amount which may be awarded under subsection (1) (for injury and any loss suffered by the victim) and subsection (3) (for the loss suffered by the relatives of the deceased victim) of s 30. It provides no basis for the appellant’s construction.
Also, the proposition that the purpose or object of the Act is, generally speaking, to provide compensation out of the public purse for all victims of crime, is incorrect. The provisions of the Act, construed in their ordinary and natural meaning, do not reveal that that is the purpose of the legislature. Rather, the amicus was correct to observe that the policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity ‘in some circumstances’ (as the long title indicates). It does so on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss. This is confirmed by s 21, which provides, in effect, that an assessor may defer dealing with the question of compensation and require the victim first to take steps to recover any amounts to which he or she may be entitled independently of the operation of the Act. A provision of that kind indicates that the legislature was not merely concerned with the avoidance of ‘double dipping’ (itself a term the meaning of which is dependent upon context) as the appellant contended, but more broadly intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.
The anomalies to which the appellant referred assumed, rather than demonstrated, the correctness of the appellant’s construction of the Act. The example given by the appellant, referred to in  above, appears to serve no useful illustration for present purposes. Victim A has received compensation from alternative sources. Victim B has not. Section 42(3) could have no application to victim B whether (adopting the language of the appellant’s submissions) s 31(1) is ‘applied’ prior to s 42, or in the ‘reverse order’.
Moreover, the appellant’s construction would produce a fundamental obstacle to the coherent operation of the Act. Section 42(3) and s 68 deal in substance with the same subject matter – the receipt of an alternative source of payment by way of compensation or damages or insurance. The only difference between the two is essentially that of timing – whether the alternative payment is received before or after an amount of compensation is awarded under the Act. On the appellant’s construction, s 42(3) would operate so that if the ‘notional’ compensation award was say $200,000, and the alternative source of compensation, allegedly deductible under s 42(3), was say $120,000, then the victim would receive an award of compensation under the Act of $75,000 ($80,000 reduced to the maximum sum of $75,000). If however the alternative amount of compensation did not come to light or for any other reason was not deducted under s 42(3) prior to an amount of compensation being awarded, then the victim would still receive $75,000 (the ‘notional’ award of $200,000 reduced to the maximum sum of $75,000), but would subsequently be required to pay $75,000 to the State under s 68(1), leaving the victim with nothing. In other words, the substantive relief provided by the operation of the Act would depend upon an accident of timing in otherwise identical circumstances.
The appellant sought to explain the inconsistency on two bases. First, that it would not likely arise much as a matter of practice. Secondly, that the disparity in outcome accorded with the common law principle that damages are awarded once and for all, and that subsequent events do not alter the amount of compensation awarded by way of a judgment.
Neither submission can be accepted. It is evident that s 42 and s 68 were intended to operate harmoniously. The appellant’s first point, that the legislature objectively intended an inconsistency in the operation between the two, on the basis that the inconsistency would only arise infrequently in practice, has nothing to commend it. As to the second point, the analogy appears at best to be irrelevant and, at worst (from the appellant’s point of view), to be a point against the appellant. It is irrelevant because the question is whether the provisions of the Act operate harmoniously as a whole; not whether the common law produces a similar anomalous result in certain circumstances. The point is against the appellant’s argument in that in the example given, after the maximum amount is awarded under the Act, a subsequent event in effect extinguishes the earlier award.
Some final observations may be made. First, the extrinsic material to which the appellant referred does not assist the appellant. The effect of s 42(3) is to prevent ‘double dipping’ in the sense that other sources of compensation are to be deducted from a ‘compensation award’. In any event, the extrinsic material could not control the meaning of the words used in the statute. Secondly, the amicus said that the primary judge’s construction of s 42 was consistent with a number of District Court decisions in relation to s 42 of the Act and its statutory predecessors. The cases to which he referred included Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381; Reed v Reed  WADC 11 , ; and Curran v Champion  WADC 9  – . It is unnecessary to examine the correctness of that proposition for the disposition of this application. Thirdly, counsel for the appellant referred to certain decisions which, he said, supported the construction being advanced on appeal, particularly Re Korber (1992) 9 SR (WA) 32 (Clarke DCJ). Again, it is unnecessary to consider those cases here save to say that they have no persuasive effect insofar as they reflect the erroneous construction advanced by the appellant.