ABC v FGT - [2024] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ABC -v- FGT [2024] WADC 95
CORAM:   MASSEY DCJ
HEARD:   7 SEPTEMBER 2023 & 20 SEPTEMBER 2024
DELIVERED          :   14 NOVEMBER 2024
FILE NO/S:   APP 43 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ABC
Appellant
AND
FGT
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 239/2021

Catchwords:

Criminal injuries - Appeal - Alleged offences - Standing to appeal award for alleged offences - Proved offence - Causation

Legislation:

Nil

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant	:	Ms M J Aranda
Respondent	:	Mr L R Nicholls
Amicus Curiae	:	Ms K E Ellison appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Maryse Aranda Lawyers
Respondent	:	Sparke Helmore Lawyers
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Ailakis v Olivero [No 2] [2014] WASCA 127
AJH v LAM [2018] WADC 126
AKM v GJH [2020] WADC 152
Briginshaw v Briginshaw (1938) 60 CLR 336
Couper v Alexander [2020] WADC 56
EB v Ramljak [2021] WADC 134
Fagan v Crimes Commission Tribunal (1982) 150 CLR 666
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Hansen v Bolton [2017] WADC 25
Hughes v The Queen (2017) 263 CLR 338
K [2023] WACIC 3
Martin v Martin [2015] WADC 138
Martin v Osborne (1936) 55 CLR 367
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Re ATS [2017] WADC 92
Re HCM [2018] WADC 20
Re Jackamarra [2014] WADC 9
Robinson [2017] WADC 18
RW [2018] WADC 116
SJR v JJC [2020] WADC 161
Underwood v Underwood [2018] WADC 13
ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61

MASSEY DCJ:

Background

The appellant stood trial before his Honour Judge Prior and a jury in March 2018. The indictment contained 28 counts.
Counts 1 and 2 were charges which alleged that, on an unknown date between 31 July 1993 and 1 November 1993, the appellant indecently dealt with another boy (in count 1) and the respondent (in count 2) both of whom were children over the age of 13 and under the age of 16, by showing them a video of boys showering. That incident occurred on the one occasion with both boys present.
There were 7 other counts of indecent dealing, 17 counts of sexual penetration (either of the anus or by fellatio) and 2 counts of procuring the respondent to engage in sexual behaviour.
The appellant was convicted of counts 1 and 2 but acquitted of all other counts.
He was sentenced to a fine of $2,000 on each of counts 1 and 2 on 4 April 2018.
Prior DCJ, in sentencing the appellant, made the following findings of fact:
(a)both offences were part of the same incident and occurred at the appellant's parents' home;
(b)the video showed boys at a school showering. The boys were naked or were wearing bathers; and
(c)the offences occurred between July and November 1993.
His Honour described the offending as at the low end of the classification of pornography. He also said that he would treat the offending behaviour as a 'one-off' incident in relation to those two boys.
By application dated 6 August 2021 (the application) the respondent applied to the Assessor of Criminal Injuries Compensation (the Assessor) for compensation for sexual abuse. The application was supported by a number of materials, which are detailed in Appendix A.
As part of that material, the respondent lodged a statement from himself dated 20 January 2021 (the 2021 statement), which was prepared for the purpose of the application.
In that statement the respondent detailed seven other incidents which he said did not form part of the charges made against the appellant.
On 14 June 2022 the Assessor awarded the respondent compensation of $100,000. The Assessor determined that the application had been made pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for proved offences as defined in the Act (the proved offence), and also pursuant to s 16(2) of the Act for charges which had been discontinued in the District Court of Western Australia and alleged offences as defined in the Act (the alleged offences).
The sum of $50,000 was awarded for the proved offence and $50,000 was awarded for the alleged offences which the Assessor was satisfied had occurred.
After the appellant gave notice of his intention to appeal, the Assessor published reasons for her decision in K [2023] WACIC 3.
The appellant appealed to this court against that decision on 5 July 2022. The notice of appeal was filed in time. A refiled notice of appeal was filed on 20 September 2022.
The appellant appeals against both the award made under s 12 and the award made under s 16 of the Act.
The grounds of appeal are:
1.The amount of the award is excessive for the proved offence
2.Disagree with making an award for the alleged offences (which were discontinued charges due to statement of respondent not corroborated by other witness alleged to be also present)
3.Respondent has likely provided false information for financial gain, based on evidence given in court and psychiatric reports
4.Behaviour, condition and attitude of respondent has not been considered, based on behaviour in court, admission of lies to police & other parties, psychiatric reports, and contradictory information
5.We need and request reasons for decisions about the award
6.Mental health history of respondent not considered, request review by Health Professional; AND
7.Historical and previous court Psychiatric reports to be provided to chosen Health Professional
I questioned counsel for the appellant at the hearing of the appeal whether all grounds were pressed. As I understood her response, grounds 1 and 2 were the only grounds which the appellant sought to advance. In any event, the remaining grounds were arguably, submissions.
I have had regard to the material provided to the Assessor. I have also been provided with other material, which is detailed in Appendix B. Part of that other material included three additional psychiatric reports, each from Dr Chris Cocks, dated 2 May 2024, 28 June 2024 and 23 July 2024 respectively. Those reports were provided because, at the initial hearing of the appeal, I raised with counsel for the respondent the issue of causation in relation to the proved offence. After some discussion counsel indicated that his instructions were to seek to obtain a further report in relation to causation and the appeal was adjourned for the purpose of allowing that to occur.
After receipt of the reports from Dr Cocks further submissions were filed by each of the parties as well as the Amicus.
Section 56(1) of the Act provides that I may decide the application solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information. I should admit that fresh evidence unless there is some reason why it would be unjust to do so. In all the circumstances I am persuaded to admit the fresh evidence contained in the reports from Dr Cocks, as well as the other material and psychiatric evidence which was not before the Assessor detailed in Appendix B.
In his statement to police, which was provided to the Assessor, the respondent detailed a number of instances of sexual abuse of him by the appellant. Those matters were ultimately reflected in the charges in the indictment.
The original indictment filed was dated 25 August 2016 and contained 31 counts. Two other counts, which alleged sexual penetration by the appellant of the respondent and which were committed from the Perth Magistrates Court, were discontinued on 23 September 2016 when the court accepted a notice of discontinuance dated 26 August 2016.
On 17 January 2017 the court accepted a notice of discontinuance dated 17 January 2017, which discontinued counts 1, 2 and 5 on the original indictment. A new indictment dated 16 March 2018 was filed and it was on that indictment which the accused stood trial.
That sequence is relevant because the Assessor, in her reasons, said that she was satisfied that the alleged offences, which had been discontinued, were likely to have occurred.
After the hearing on 20 September 2024, I obtained copies of the transcripts of the hearings on 23 September 2016 and 17 January 2017. I caused those to be sent to the parties by email, with an invitation to the parties to file further submissions if they saw fit.
At the hearing on 23 September 2016, the prosecutor told the court that the charges which were discontinued by the notice dated 26 August 2016 were being discontinued because 'the original charges were different from the ones that had been charged in the indictment'.
On 17 January 2017 the prosecutor told the court that the notice of discontinuance dated 17 January 2017 was filed on the basis 'that there's no reasonable prospect of obtaining a conviction on them following proofing of the complainant'.
On 4 October 2024 the appellant and respondent filed further submissions.
The appellant says that the discontinuance of counts 1, 2 and 5 were due to discrepancies between the evidence of the two complainants. I do not think I can draw that distinction given that the prosecutor, when the charges were discontinued, said that the notice of discontinuance was provided after proofing of the respondent.
It is not open to me, in the absence of any other reasons, to conclude that the discontinuance occurred because of discrepancies between the respondent and other witnesses.
The respondent's submissions filed on 4 October 2024 remind me of the difference between the criminal standard of proof, beyond reasonable doubt, and the civil standard of proof, on the balance of probabilities. The respondent also says that it is not possible to know, based on the available material, what occurred during the proofing of the respondent that caused the prosecution to form the view that the charges should be discontinued.
The respondent further submits that it can be inferred that the proofing did not involve the complainant recanting or withdrawing his complaint, given that the respondent has maintained those offences occurred over a number of years. Again, I do not think I can speculate about what occurred out of the proofing of the respondent.
Otherwise, the respondent's further submissions expanded upon its earlier written and oral submissions relating to similar fact evidence.
I am cognisant of the difference in the standard of proof between civil and criminal proceedings. I recognise that the Act contemplates awards for compensation in circumstances where the charge is withdrawn: s 16(1)(a).
However, what I do infer from the information provided to the court on 17 January 2017 when the charges were discontinued is that some issue occurred at the proofing of the complainant which meant that the prosecution considered that the evidence proposed to be given by the respondent in relation to the charges which were discontinued would not be sufficient to satisfy a jury beyond a reasonable doubt. I infer therefore that the prosecution must have formed the view that there were significant issues relating to the truthfulness, accuracy or reliability of the respondent in relation to those counts.
In my view the fact that the charges were discontinued in those circumstances is a matter I can take into account in assessing whether or not the alleged offences occurred.

The 2021 statement

In the 2021 statement the respondent detailed the effects of the abuse on him and went on to say as follows:
(a)that the statement was provided to explain the impact the offences had on his life and why he had not lodged an application before;
(b)he had a good childhood, although his parents separated when he was around 4 years old. He suffered from attention deficit hyperactivity disorder (ADHD);
(c)he met the appellant in 1993 when he, the respondent, was 13 and the appellant was 21;
(d)he 'hung out' with the appellant from time to time, who also told him that he was a police officer on occasion;
(e)he gave details as to the incident alleged in counts 1 and 2, saying that he and another boy were shown a video of boys showering and that, after showing the video later that day, the appellant pulled his penis out and masturbated in front of the respondent. I note that the allegation that the appellant masturbated in front of the respondent, which would have constituted indecent dealing, was not the subject of a charge faced by the appellant at trial;
(f)that from this day on the appellant showed him a lot of pornographic videos and pictures, touched him and did a lot of things to him, including having anal sex with him. He said that the appellant always showed him pornographic videos or pictures before abusing him;
(g)the abuse started in August 1993 and finished a week or two before the respondent went to jail for the first time in March 1994;
(h)it was difficult for him to talk about that time and what happened;
(i)in around 2015 he told police about some of the things that had happened. He did not like talking about it;
(j)there was a trial in 2016, 2017 and in 2018 and he had to give evidence; and
(k)there were seven other offences which did not form part of the charges against the appellant which took place when the respondent was 13 or 14 years old, in 1993 or early 1994. They were:
(i)one night, in a car park near a primary school, the appellant drove into the car park and scared children away who were trying to beat the respondent up. The appellant then drove the respondent to his house and had anal sex with him;
(ii)one day he was at the park near the appellant's house when the appellant turned up with another two men. Shortly afterwards, he and the appellant walked to the appellant's mother's house and the appellant had sex with the respondent in his mother's lounge room;
(iii)on another occasion, after the appellant took him and another boy to a laser tag place in Northbridge, the appellant made the respondent have sex with him in the granny flat at the appellant's mother's house later that same day;
(iv)on a day when the appellant showed the respondent how to do a 180 degree handbrake turn, the appellant drove him back to the granny flat at his mother's place and made the respondent have sex with him there;
(v)one night when the appellant and respondent picked up another girl and her friend, the appellant drove them all to a bridge and parked near it. He tried to have sex with one of the girls, who did not want to, and so the appellant made the respondent have sex with him;
(vi)on a day when the appellant bought a DJ mixing keyboard from a shop in Midland and used the keyboard in his granny flat, the appellant also had anal sex with the respondent; and
(vii)one night the respondent was outside the appellant's house and was throwing rocks onto the appellant's roof. The appellant ran out and pointed a handgun at the respondent, which made him feel scared. After the appellant calmed down, he took the respondent inside to the appellant's bedroom and had anal sex with him.

The appeal - general principles

In hearing the appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': s 56(1) of the Act.
The appeal is a hearing de novo: Underwood v Underwood [2018] WADC 13 [19] (Underwood); Robinson [2017] WADC 18 [7]. Furthermore, the appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.

Standing to appeal

There is a preliminary issue which I need to determine, which is the appellant's standing to appeal.
As I have already said, the Assessor awarded $50,000 for the proved offence under s 12 of the Act and $50,000 for the alleged offences under s 16 of the Act.
Section 12 of the Act provides:
Proved offence
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
(2)If a person, being a close relative of a person who dies as a consequence of the commission of a proved offence, suffers loss as a result of the death, the personal representative of the deceased may apply for compensation for that loss.
(3)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence;
(b)if the application is made under subsection (2) - that the death occurred as a consequence of the commission of a proved offence and that the claimed loss has occurred.
Section 16 of the Act provides:
Alleged offence: charge not determined
(1)This section applies if a person is charged with an alleged offence and -
(a)the charge is withdrawn or a nolle prosequi is entered in respect of it or the prosecution of it is discontinued; or
(b)the charge is dismissed without a finding as to whether the person charged is guilty or not guilty of it; or
(c)the person is acquitted because the prosecutor does not adduce any evidence on the charge; or
(d)the person dies before he or she is found guilty or not guilty of the charge; or
(e)for any other reason, the person is not brought to trial on the charge,
and -
(f)the person charged is not otherwise charged with the alleged offence or tried for it; and
(g)section 15 does not apply.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
(3)If a person, being a close relative of a person who dies as a consequence of the commission of the alleged offence, suffers loss as a result of the death, the personal representative of the deceased may apply for compensation for that loss.
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;
(b)if the application is made under subsection (3) - that the death occurred as a consequence of the commission of the alleged offence and that the claimed loss has occurred.
(5)If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code s 27 or the Criminal Investigation (Covert Powers) Act 2012 s 27, s 31 or s 34.
By virtue of s 55 of the Act, only an interested person may appeal to the District Court against an assessor's decision to make or to refuse to make a compensation award, or as to the amount of a compensation award.
Interested person is defined in s 3 of the Act as:
(a)the applicant; or
(b)a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or
(c)the CEO;
…
Another relevant provision is s 49 of the Act, which provides as follows:
CEO may request offender to reimburse compensation
If -
(a)a compensation award is made in respect of any injury or loss suffered as a consequence of an offence; and
(b)a person is convicted of the offence,
then, subject to any order made under section 45(1), the CEO may give the offender a written notice that requests the offender to pay to the State as a lump sum -
(c)the whole, or such part as is specified in the notice, of the amount paid or payable under the award; and
(d)the whole, or such part as is specified in the notice, of the amount, if any, deducted under section 42(3) or (4) and remitted to the Commonwealth under a law of the Commonwealth.

It follows that, in order to be a person who may become liable under pt 6 to pay an amount to the State the appellant would have to be convicted. He was not convicted of any offence in relation to the alleged offences the subject of the award under s 16 and the appellant is therefore not liable to pay any amount. He is therefore not an interested person as defined.
Consequently, the appellant has no standing to appeal that part of the award made pursuant to s 16 of the Act.
I accept what Braddock DCJ said in Couper v Alexander [2020] WADC 56 [47] (Couper):
Accordingly, in order for a person to be an 'interested person' under s 55 of the Act, the person must be one who may become liable to make a payment to the State. Pursuant to s 3, an interested person must be a person convicted of an offence.
The appellant appears to concede this in the written submissions.
There is, however, another issue raised by the Amicus.
In Couperan initial application for compensation was made pursuant to s 12 on 3 October 2016. After the Assessor became aware, during the course of her investigations, of a further incident, she corresponded with the solicitors for the applicant in that case and then a further application, dated 25 July 2017, was filed. That second application was brought pursuant to s 16 of the Act. Her Honour held, as I have here, that the appellant had no standing to appeal that second application.
In this case the application for compensation made by the respondent was made on the one claim form for both the proved offence and the other offences detailed in the respondent's 2021 statement.
The Amicus essentially invites me to consider whether the application related to both the proved offence and the alleged offences and, because of the requirement that I must decide the application to which the decision relates afresh, I ought to consider afresh whether the alleged offences occurred and whether compensation should be awarded for those offences.
It is therefore necessary to consider s 56 of the Act, which provides as follows:
Dealing with appeals
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following -
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
(d)order an unsuccessful party to the appeal to pay a successful party's costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e)refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f)make any necessary consequential order.
The Amicus says that it is not possible to separate out the information that was in the possession of the Assessor with respect to only the application under s 12 or the application under s 16 of the Act. Essentially the same information was provided with respect to the claims made under each of those sections.
Additionally, the maximum jurisdictional limit for the claim was increased to $100,000 as a result of the Assessor's finding that the proved offence and the alleged offences were unrelated offences within the meaning of s 34 of the Act.
The Amicus therefore invites me, as I have said, to consider afresh whether the alleged offences occurred and whether compensation should be awarded for those offences.
The appellant made no submissions in this regard.
The respondent maintains that this appeal is limited to a review of the Assessor's decision to award compensation for the proved offence. The position of the respondent is that the appellant cannot use the appeal on one aspect of the award, on which he is permitted to appeal, to reopen consideration of an award for an alleged offence, on which the appellant would have no standing to appeal.
The respondent says that this view is supported by the text, context and purpose of the Act.
The respondent relies on the fact that, although one consolidated application form was used, the application was treated by the Assessor as being brought under different provisions of the Act. The application for the proved offence was made under s 12 and the application for the alleged offences was made under s 16 of the Act.
In the submission of the respondent, they are in reality two separate applications consolidated into one application form. The respondent says that the Assessor was in fact determining an application with respect to each of s 12 and s 16 of the Act, deciding whether or not to award compensation for each, and the amount of the appropriate compensation with respect to each application. The award, in the submission of the respondent, clearly distinguishes between the alleged offences and the proved offence and there are separate awards for compensation made for each.
The respondent referred to s 30(1) of the Act and says that the relevant decision referred to in s 55(1) and s 56(1) is that of the Assessor to award compensation under s 30(1) by reference to the substantive provision which permits compensation to be sought.
The submission of the respondent is that the situation would be no different than that where two separate application forms were lodged, one under s 12 and the other under s 16 of the Act, and separate awards were then made in relation to each application. In the submission of the respondent, it would be a perverse result to hold that, if an applicant uses one form to claim for both proved and alleged offences, the alleged offender may effectively reopen consideration of both awards.
The respondent's position is that the limitations on an alleged offender's rights to appeal, as well as provision for the Chief Executive Officer (CEO) to appeal, evince a clear legislative intention that alleged offenders are not to bring, or participate in, appeals relating to awards for alleged offences.
The respondent submits that the purpose of the scheme for compensation for the commission of alleged offences is to provide victims with the ability to receive awards of compensation and to seek review of the Assessor's decision. It is not part of the scheme, in the submission of the respondent, for the alleged offender to effectively reopen that type of award on appeal. It is the respondent's submission that the legislature plainly intended precluding alleged offenders from appealing decisions of the Assessor.

Ruling on the effect of s 56 of the Act

I accept the submissions made by the respondent. In my view the Act does clearly evince a legislative intention that alleged offenders cannot appeal awards made for applications made under s 16. I accept the respondent's submission that to adopt the interpretation which I was invited to consider by the Amicus would, in effect, allow alleged offenders a backdoor way of appealing such awards in circumstances where the CEO has power to appeal if he or she wishes to do so. The Act very clearly excludes alleged offenders from being able to participate in those appeals.
I have had regard to the submissions about the interplay between pt 4 of the Act and s 56 which means that I must decide the application to which the decision relates afresh. I have also had regard to what is said about the jurisdictional limit and the increase in the jurisdictional limit which occurs as a consequence of any finding that the alleged offences are unrelated to the proved offence.
While I accept that there may be an increase in the jurisdictional limit which occurs as a consequence of the proved offence being unrelated to the alleged offences, in my view that does not mean that my power is enlivened to deal with the alleged offences. In my view, the 'application to which the decision relates', to adopt the words of s 56, is the decision of the Assessor to award compensation for the proved offence. That is the decision against which the appellant has standing to appeal. While the Assessor used the same evidence in considering the awards of compensation for both the proved offence and the alleged offences, they were separate applications and were treated as so by the Assessor in separating out the amounts of compensation awarded.
To determine otherwise would be contrary to the clear objective of the Act, namely, to exclude alleged offenders from rights of appeal with respect to applications made under s 16.
I therefore am of the view that the only decision which is capable of being appealed by the appellant is the decision of the Assessor to award the respondent the sum of $50,000 under s 12 of the Act for the proved offence.
The appeal therefore fails insofar as it relates to the decision of the Assessor to award $50,000 under s 16 of the Act as compensation for the alleged offences.

The appeal against the decision under s 12 of the Act

I next must consider my decision in relation to the appeal against the decision made under s 12 of the Act by the Assessor.
The first issue is that the application was lodged on 12 February 2021. The proved offence occurred in 1993.
Section 9(2) of the Act provides that an application for compensation must be made within three years after the date of the offence. However, an Assessor may allow an application made after that three‑year period if he or she thinks it is just to do so and may do so upon any conditions that he or she thinks are just to impose.
In Hansen v Bolton [2017] WADC 25 [14] Herron DCJ outlined factors which may be relevant to the exercise of the court's discretion as follows:
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
The respondent was about 14 years of age at the time of the commission of the proved offence and therefore a child. I accept that the complaint to police was not made for a number of years because of a combination of factors, including the respondent's youth, various periods when he had significant mental health issues and a general reluctance to speak of the matters which he ultimately complained of.
Furthermore, after lodging the application it was, in my view, reasonable to wait until the outcome of the charges were known. The appellant was convicted on 4 April 2018 and was sentenced the same day.
The respondent's application for criminal injuries compensation was lodged less than three years after the determination of the jury, although some 28 years after the offence was committed. I am satisfied that it is just to allow an extension of time for the application to be made to the date on which the respondent lodged his application with the Assessor.

Was a proved offence committed?

Before making an award under s 12 of the Act the court must be satisfied that:
(a)the proved offence occurred;
(b)the claimed injury and any claimed loss has occurred; and
(c)the claimed injury and loss occurred as a consequence of a proved offence.
Dealing with the first of those issues, s 3 of the Act defines proved offence as:
a crime, misdemeanour or simple offence of which a person has been convicted.
The appellant was convicted by a jury of an offence which is a crime. Accordingly, I am satisfied that a proved offence has occurred.

Did the claimed injury and any claimed loss occur and, if so, did the claimed injury and loss occur as a consequence of the proved offence?

Compensation can only be awarded if I am satisfied, on the balance of probabilities, that the respondent suffered the injury claimed and the injury is a consequence of the commission of the proved offence.
The evidence that is before me includes the 2021 statement, which I have already partly summarised. The respondent went on, in the 2021 statement, to outline the effects of the abuse on him (which included the alleged offences as well as the proved offence).
The respondent said that:
(a)the day the appellant first showed him pornography was the beginning of the end of his life, and that since the abuse he had been in jail or in mental hospitals or homeless. Once the abuse started, he started to act out and at 14 was put into detention for stealing cars;
(b)the appellant ruined his life and that he did not want to have sex with the appellant or watch the videos he made him watch;
(c)his relationships have been affected and sex has been associated with negative feelings and confusion. The pornography and what the appellant did has affected him. As a way to block out the trauma the respondent started to inject methylamphetamines at 19 and continued to take drugs almost on a daily basis to age 35. At the age of 21 he had a drug induced psychosis and has had other drug induced psychoses;
(d)as a result of taking amphetamines to block out the trauma he often felt agitated and aggressive and struggles everyday with the trauma. He has traumatic thoughts running through his head and has thoughts about the pornography and about being raped or murdered by men;
(e)he spent months in mental hospitals because of the thoughts of being raped or murdered by men like the appellant. The relationships with his family have been affected. He is overly protective of people as a result and blamed his parents for the abuse he suffered even though his parents did not know about it;
(f)he has been unable to have a girlfriend for longer than six months and cannot properly connect with a woman because of the thoughts he has. After the offences occurred, he was not able to continue with his education. He started a job as a spray painter but struggled as he was not able to concentrate. The time he spent in and out of jail meant his career could not be developed;
(g)because he associates the appellant with grown men, he often becomes violent and angry towards grown men. He says that not a single day passes when he does not have horrible thoughts about the appellant and has continued to have sexual trauma counselling; and
(h)he would like further sessions with psychologists to assist with his trauma and would like to be able to continue treatment.
The matters contained in the 2021 statement, his victim impact statement and his statement to police is evidence which I take into account. However, I recognise that the respondent's evidence in relation to the effects on him is subjective and not an objective and impartial account of the consequences.
The respondent also relied on a large amount of medical evidence, some of which was before the Assessor, and some additional material provided to me.
Some of that material was obtained under a notice to produce to this court from the Commissioner of Corrective Services and is voluminous.
There was also a victim impact statement provided by the respondent which was dated 16 January 2016 which I have taken into account.
I will briefly summarise the contents of the various reports.

Report by Dr Adam Brett dated 10 May 2017

It should be noted that Dr Brett's report was provided to the Department of Public Prosecutions at a time when all charges were still to be determined. As a consequence, where he refers to the alleged offences or the offence I take him to be referring to a number of alleged offences, and not just the alleged offences and the proved offence.
Dr Brett was the respondent's treating psychiatrist and outlined the respondent's previous and collateral psychiatric history.
Dr Brett says that the respondent's previous psychiatric history includes being diagnosed with ADHD at the age of 4 and being prescribed medication, which he did not take. He had had delusional beliefs about the Claremont serial killer and police involvement as well as delusional beliefs about the police.
He noted from the collateral history obtained that in 1994 the respondent had a clear history of attentional difficulties, drug abuse and delinquent behaviour. He was assessed as having no signs of schizophrenia or depression and having at least average intelligence.
In 2001 he was admitted to the Frankland Centre and gave a history of mounting concerns about ill treatment and imminent violence at the hands of his housemates and other identified people. He believed he was being observed and his house was bugged.
The discharge summary noted that he denied any physical or sexual abuse during his childhood. The discharge diagnosis was schizophreniform psychosis, amphetamine abuse and dependence and antisocial personality. There were other admissions to hospital, where the discharge diagnosis was mental and behavioural disorder due to multiple drug use.
In 2007 he was diagnosed with affective psychosis and mental and behavioural disorder due to polysubstance abuse. There were other hospitalisations for similar issues.
In 2013 he was admitted to the Frankland Centre where he believed that the police had been involved in raping women. It was also noted that he had no abuse reported during childhood.
Those beliefs were repeated in 2014 at a subsequent admission to hospital. At that stage the discharge diagnosis was schizoaffective disorder with mental and behavioural disorder due to polysubstance abuse.
Dr Brett detailed the respondent's extensive and significant history of substance use including cannabis, amphetamine‑based substances since the age of 19 and a previous use of heroin which was described as not extensive.
Dr Brett said that 'it is noted that his acute psychotic episodes have been significantly associated with substance abuse. It has been noted that his offending behaviour has been associated with substance use'.
Dr Brett's clinical diagnosis was schizoaffective disorder, with the differential diagnosis of recurrent drug induced psychotic episodes, polysubstance abuse and ADHD. He also diagnosed the respondent with having dissocial (antisocial) personality disorder.
At the time of assessment in 2017 Dr Brett was of the view that the respondent appeared to be functioning reasonably well with no significant psychotic symptoms.
Dr Brett went on to say that the evidence suggests that the respondent has an underlying mental illness within the psychotic spectrum, which is much worse when using drugs and significantly improved when on medication and abstinent from drugs.
At that stage he appeared capable of giving a coherent, chronological account of his events. This did not appear to relate to his previous delusional system and there was no evidence of him having ongoing delusions.
Dr Brett said that there is no evidence that the alleged offence was a delusional memory. His delusional beliefs abated when on treatment and off medication. This belief has not abated.
Dr Brett was of the view that the respondent's delusions were caused by his underlying mental disorder, most likely schizoaffective disorder which was exacerbated when he used drugs.

Letter from Diane Paddon-Jones, South West Psychological Solutions dated 27 April 2020

There is no statement of Ms Paddon-Jones' qualifications in the letter provided.
She spoke of an assessment where the respondent told her that he started taking drugs for the first time to cope after experiencing trauma at age 14.

He told Ms Paddon-Jones that he had completed 10 sessions with trauma counselling.

Email from Annie Rickman, South West Support Coordination, undated

Ms Rickman is a social worker with 20 years experience at the time of sending her email. She had worked with the respondent for the past three years.
Ms Rickman said that she had regular contact with the respondent and, despite his mental health and addiction issues, had found him to be reliable and responsible. She said it was only when the respondent had an 'episode' that he could lose insight and act impulsively.

Other material

There were no other materials relating to the respondent's mental health issues referred to by the Assessor. There is other material which I have before me, some of which predates the award.
As I said earlier, this court was provided with some documents produced after a notice was issued to the Commissioner for Corrective Services for the respondent's medical records. I have read those but am not going to summarise them as they are voluminous. What they reveal is that the respondent has had a consistent engagement with prison health services over a number of years for mental health issues.

Report from Dr Victoria Pascu dated 29 December 2017

Dr Pascu, who is a psychiatrist, was retained by the appellant's counsel during the course of the criminal proceedings. She was asked to review a number of documents relating to the respondent's admissions to the Frankland Centre for treatment of his major mental illness since 2001. She reviewed his medical files at the Frankland Centre, which included collateral information from mental health staff from various prisons, the respondent's mother and discharge summaries from other mental health units.
Dr Pascu also reviewed her psychiatric reports dated 22 March 2010, 23 May 2015 and 6 August 2015, which she prepared following assessments of the respondent at the request of the court for offences committed by the respondent.
She did not review the respondent personally for the preparation of this report.
Dr Pascu summarised the material made available to her.
According to Dr Pascu the respondent gave at times quite fraught, disordered accounts.
Dr Pascu went on to say that the respondent described fairly consistent, fixed delusional material including a connection with the Claremont serial killer, reporting to police about various people being murdered and buried, believing people he knew would be shot and killed and once believing that the police took him to a hospital where a female's car was reported on the news to have been found after she disappeared.
Dr Pascu also outlined other delusions suffered by the respondent, including the police raping his girlfriend.
Dr Pascu noted that over the years the respondent had repeatedly denied any history of physical, emotional or sexual trauma, and in the interview for her report in 2010 again denied any trauma.
Dr Pascu said that in the two interviews for her reports dated 23 May and 6 August 2015 the respondent described in some detail the alleged sexual abuse when he was 13 or 14 years old.
Dr Pascu summarised the respondent's drug use.
Dr Pascu said that since early infancy the respondent had been disruptive and impulsive with many episodes of destruction of property and conflicts with others. According to her he told her that his parents separated when he was aged 12 and it was around that time he started stealing. He described his childhood as okay, and she noted that when interviewed for her reports dated 22 March 2010 and 10 April 2012, there were no claims of any physical or sexual abuse.
Dr Pascu concluded that there is evidence of significant psychosocial instability due to the respondent's mental illness, illicit substance use and recurrent imprisonment with employment difficulties.
She said that the respondent had a longstanding history of disruptive and destructive behaviours from the age of 2 and that this, together with a history of learning difficulties raised concerns about a diagnosis of ADHD from an early age. She said that the observed episodes of manic-like presentations were more likely secondary to his amphetamine abuse and dependence.
Dr Pascu went on to say that the diagnosis of ADHD would not fully describe the respondent's longitudinal history and symptomatology. She said that the respondent clearly suffers from a further significant mental illness, which is characterised by chronic psychotic phenomena, with a well systematised delusional system, with intermittent affective symptoms. She said that it is likely that heavy, long-term amphetamine use has played a role in precipitating this illness in the respondent, who has an underlying biological predisposition for both psychotic and affective disorders.
She was asked a question by the appellant's lawyers as to whether the respondent's allegations involving the appellant might be delusional. She responded by saying that it is difficult to know exactly whether the reported sexual interference was part of his delusional system. She said that there was a need for caution in patients with known psychotic disorders not to minimise or ignore their allegations of abuse and perceive them as delusional. On the other hand, according to Dr Pascu it is known that patients with complex delusional systems will or may over time incorporate in their delusional system people or events with whom they come in contact or are familiar. She noted that the allegations to police occurred after the Royal Commission into Sexual Abuse was initiated and said that this may have triggered memories of a real abuse, but it might have triggered delusional memories in the context of the respondent's severe psychotic illness.

Reports from Dr Febbo

Dr Febbo provided reports dated 31 August 2012, 26 October 2012, 22 June 2012, 16 May 2012, 6 July 2012, and 4 May 2012. He appears to have treated the respondent when the respondent was incarcerated.
In his report dated 4 May 2012, Dr Febbo said that the respondent's presentation was in keeping with a diagnosis of paranoid schizophrenia with a differential diagnosis of schizoaffective disorder. He said that the respondent had described a number of events 'that had a distinctive delusional quality'.

Reports from Dr Cocks

Dr Cocks is a psychiatrist and was provided with a number of materials by the respondent's solicitors. He provided three reports dated 2 May 2024, 28 June 2024 and 23 July 2024.
He took a history from the respondent, which is detailed in the initial report. As part of the history, the respondent told Dr Cocks that he was sexually abused through penetrative anal sex with the appellant, as well as forced to perform oral sex on the appellant. He also said the appellant would masturbate in front of him while viewing child pornography.
The respondent told Dr Cocks that the appellant continued to inflict harm on him through the appeal process.
Dr Cocks summarised the respondent's past psychiatric history, noting the diagnosis of ADHD and his multiple admissions to Graylands Hospital.
Dr Cocks also noted that the respondent related his life of offending and illicit substance abuse solely to the abuse that he suffered recurrently from the appellant from the age of 13.
Dr Cocks also reported that the respondent described a history of alleged sexual abuse from a schoolteacher when he was in Year 3, which involved repeated fondling of his genitalia. The respondent was of the view that this abuse did not affect him to the degree that he had suffered from the abuse inflicted on him by the appellant.
Dr Cocks reviewed the reports from other psychiatrists, which I have already summarised. Dr Cocks was of the opinion that the respondent's symptoms fulfilled the criteria for schizoaffective disorder, stimulant use disorder and antisocial personality disorder. He noted a history of recurrent episodes of psychosis.
In his view there was a relationship between the respondent's stimulant use disorder and his recurrent episodes of psychosis. The schizoaffective disorder had been exacerbated by the comorbid condition of a stimulant use disorder. He said that the persistent abuse of methylamphetamine had resulted in a recurrent and severe exacerbation of the respondent's underlying chronic mental illness.
It was Dr Cocks' view that the respondent's schizoaffective disorder had likely emerged through a combination of both genetic and environmental factors. He went on to say:
He has a family history of psychosis. He has also been exposed to significant developmental difficulties. The stress of the sexual abuse inflicted upon him at the age of 13 likely resulted in [the respondent] turning towards marijuana and then stimulant illicit substances, resulting in an exacerbation of his underlying condition.
Dr Cocks was of the view that the cause of the respondent's complex mental health and substance abuse history was multifactorial. He was unable to provide, with any degree of certainty, a degree of contribution of the causes to his lifelong mental health related difficulties.
He was asked about the impact of the proved offence on the respondent's condition. He said that the proved offence had significant impact upon the respondent. It was the first stage of the abuse that resulted in the respondent entering into a dangerous relationship with the appellant. It was significant as it was the first breach of trust leading to further alleged sexual abuse in the respondent's relationship with the appellant. Dr Cocks went on to say that, in his opinion, it was difficult to distinguish between the proved and alleged offences in this matter and their impact upon the respondent's current condition. For the respondent, the offences are all collective and traumatising.
In the absence of the proved and alleged offences Dr Cocks said that the respondent could have lived a life outside of the correctional system, and could have avoided illicit substance abuse, maintained employment and lived a functional life. He said that the proved offence contributed to the respondent abusing illicit substances and turning to a life of crime. He said that collectively the proved and alleged offences have resulted in a loss of identity and chronic impairment in self‑esteem.
In his view there was a causal relationship between the proved and alleged offences inflicted upon the respondent during his adolescence by the appellant.
In his second report of 28 June 2024 Dr Cocks was asked whether he considered that the proved offence had materially contributed to the injury/loss suffered by the respondent. He was of the view that the proved offence in isolation did not materially contribute to the injuries and loss suffered by the respondent. In his opinion, the contribution of the proved offence in isolation was negligible. He went on to repeat what he had said in his earlier report, namely that the proved offence alongside the alleged offences have had a profound impact upon the respondent's mental health.
He said that the alleged offences had materially contributed to the injuries or loss suffered by the respondent, but it was difficult to distinguish between the proved and alleged offences in this matter and the impact upon the respondent's current condition. The offences were collective and traumatising for the respondent.
He said that there was evidence that the respondent was abused by the appellant at an extremely vulnerable stage of his development and that it had been proven in court that there was a manipulation of the respondent by the appellant. In his opinion, that manipulation had resulted in an exacerbation of the respondent's pre‑existing vulnerabilities and resulted in him turning to a life of crime and drug abuse.
He repeated that the proved offence and alleged offences collectively materially contributed to the injuries or loss suffered by the respondent.
In his third report of 23 July 2024, Dr Cocks indicated that he was asked whether the injury or loss caused by the proved offence could be understood in isolation to the injuries/loss caused by the alleged offences. In his view they could not be understood in isolation.
Again, he repeated that, considering the injury or loss caused by the proved offence and the alleged offences collectively, the proved offence contributed to the injury/loss.
What I take from Dr Cocks' reports is that the proved offence and alleged offences collectively contributed to the loss, but that it is not possible, in isolation, to attribute the injury or loss caused by the proved offence.
Given the conclusion of Dr Cocks that the proved and alleged offences need to be considered collectively when determining the contribution to the injuries, it is necessary for me to consider whether I am satisfied that the alleged offences occurred.
I have already found that the appellant has no standing to appeal the decision in relation to the alleged offences. However, given the conclusions of Dr Cocks I do need to determine this issue in order to determine the outcome of ground 1 of the appeal as it pertains to the award for the proved offence.
In considering this issue, I should add that I am unsure of what led Dr Cocks to conclude that it had been proved in court that there was a manipulation of the respondent by the appellant. There is nothing in the findings of fact made by Prior DCJ which would support that conclusion. His Honour specifically said that he would treat the proved offence as a 'one-off' incident in relation to the two boys.

Am I satisfied that the alleged offences occurred?

Alleged offence is defined in s 3 of the Act to mean 'a crime, misdemeanour or simple offence of which no person has been convicted'.
'Satisfied' is defined to mean 'satisfied on the balance of probabilities'.
The respondent bears the onus of proving, to the civil standard, that an alleged offence has occurred: see Robinson [10] (Troy DCJ); Martin v Martin [2015] WADC 138 [29] (Derrick DCJ); Re Jackamarra [2014] WADC 9 (Jackamarra); RW [2018] WADC 116 [17] (Vernon DCJ).
The respondent must satisfy the court, on the balance of probabilities 'that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it': Jackamarra [13].
It is a serious matter to make findings that an alleged offender has committed an act in the nature of an offence, particularly when they are not given the opportunity to refute those allegations: Jackamarra [75].
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ); Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
The court must feel an actual persuasion that the offence occurred, and 'such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact': Re ATS [2017] WADC 92 [29] (ATS).
I adopt what Herron DCJ said in ATS [114]:
The only witness to the alleged offending is ATS. That is not unusual in such matters. It is therefore necessary in determining whether or not ATS has discharged the onus upon her of proving on the balance of probabilities that, relevantly, a crime has been committed of which no person has been convicted, that I should feel an actual persuasion the alleged offending occurred. ATS' evidence must be scrutinised with care and caution in determining whether the alleged offending occurred, but also having regard to the remedial purpose of the Act which provides a right to compensation. It is necessary to be satisfied of the truthfulness, accuracy and reliability of the evidence of ATS. I approach the resolution of the factual issues in that way notwithstanding the doubt I have earlier expressed ([30] - [31]) as to the applicability of the rule in Briginshaw v Briginshaw to these proceedings, given the serious nature of the allegations made by ATS and the need to be satisfied that criminal responsibility, which gives rise to the entitlement to compensation, has been proved.
It is difficult to ascertain from the reasons for decision specifically what alleged offences the Assessor found proven or on what basis she did so. In any event, given that this is a hearing de novo I must determine whether I am satisfied that any of the alleged offences, as detailed in the 2021 statement by the respondent, occurred.
The respondent relies on the matters contained in his evidence at the trial of the appellant, in his statement to police and in the 2021 statement, as well as the convictions of the appellant for sexual offending.

Common law propensity

The appellant was convicted of four counts of indecent dealing in the Children's Court when he was 14 years old. The only details I have about that offending is contained in a transcript of sentencing of the appellant in relation to other, unrelated offending in the Supreme Court of Western Australia. According to that transcript, the appellant had rubbed his erect penis between the legs of two young boys (the Children's Court conviction).
In 1994 the appellant was convicted in the Supreme Court of Western Australia of one count of sexually penetrating a male child under the age of 13 (the 1994 conviction).
The facts of the 1994 conviction were that the appellant, who was then aged 22, met a 12-year-old boy through a local church. On 10 July 1994, after watching a video in the appellant's bedroom at the appellant's parents' place, the boy had a shower. When he returned to the appellant's room the appellant had a shower and, after finishing, went back to the room where the boy was lying on the mattress on his stomach. The appellant pulled the boy's shorts down and put his penis between his upper legs near the buttocks of the boy. The appellant then inserted his penis into the boy's anus before the boy yelled out to the appellant to stop and pushed him off.
The respondent says that these offences establish that, at the time of the alleged offences, the appellant had a sexual interest in children and had a propensity to act on that sexual interest, including through contact offences.
The respondent also says that I can use the conviction in count 1 on the indictment involving the other boy as evidence which establishes the appellant's sexual interest in children.
The respondent also says that I can take into account other evidence (the search evidence), including:
(a)a statement of a police employee who inspected internet evidence on devices taken from the appellant's home in or around 2015, where he identified search records that contained the term '12-year-old boy in speedos', 'boy in jox', and 'boy undies'; and
(b)a quantity of internet history records, including Google search engine activity containing terms 'schoolboy/s', 'rape' and 'masturbating', as further material which establishes the appellant's sexual interest in young boys.
The State relied on the evidence of the 1994 conviction in the Supreme Court of Western Australia at the appellant's trial as propensity evidence.
The respondent says that these matters in combination are strongly probative as to whether the alleged offences under consideration in this appeal occurred and increase the probability that they did so.
Because s 31A of the Evidence Act 1906 (WA) only applies to criminal proceedings it is necessary to turn to the common law regarding the principles which govern the admissibility of similar fact evidence in civil proceedings.
Herron DCJ set out the legal principles governing the admissibility of similar fact evidence in civil proceedings in ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61 [440] - [458] (ZYX). I adopt those principles.

His Honour referred to Ailakis v Olivero [No 2] [2014] WASCA 127, where Buss JA and Murphy JA in summary said that the relevant legal principles governing the admissibility of similar fact evidence in civil proceedings are:
(a)similar fact evidence is a form of circumstantial evidence;
(b)circumstantial evidence is admissible if it is relevant to a fact in issue;
(c)circumstantial evidence is relevant to a fact in issue if it is logically probative of the existence or nonexistence of that fact, in the sense that the occurrence of the circumstances makes the occurrence of the contentious fact more or less likely; and
(d)the evidence will be logically probative and admissible if the occurrence of the similar fact makes the occurrence of the contentious fact more likely.
Buss JA and Murphy JA went on to say, at [64]:
It will be apparent from the principles which I have set out above that the necessary first step in any process of evaluation of the admissibility of similar fact evidence is the identification of the contentious fact in issue to which the evidence is said to be relevant. That is necessary because the second step in the process requires an assessment of whether the occurrence of the fact said to be similar makes the occurrence of the contentious fact more likely.
In Martin v Osborne (1936) 55 CLR 367, 375, Dixon J said:
The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. The application of this, as of any other general statement about relevancy is subject to the well-known specific rules of exclusion.
In Hughes v The Queen (2017) 263 CLR 338 the plurality, Kiefel CJ, Bell, Keane, and Edelman JJ said at [16]:
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.
I must therefore identify the fact in issue to which the evidence is said to be relevant.
In this case the fact in issue is whether the appellant sexually assaulted the respondent in the manner alleged in his 2021 statement, in his evidence at the criminal trial of the appellant and in his statement to police.
I must next consider whether the occurrence of the matters identified by the respondent, namely the Children's Court conviction, the 1994 conviction, the conviction of the offence in count 1 on the indictment and the internet search records found by police, make the occurrence of the alleged offences more likely.
I accept that this is the case with respect to the 1994 conviction. That offending occurred at about the same time as the alleged offences complained of here and involved similar factual circumstances. The boy offended against was a similar age as the appellant was at the time the alleged offences are said to have occurred and there was a similar age discrepancy.
However, I have very little detail about the Children's Court proceeding. I have no information about the age of the two boys involved or the factual circumstances beyond what I have already stated. It also occurred when the appellant was 14 with no evidence of any similar behaviour in the intervening eight years. I am not able to find that the facts which led to the Children's Court conviction make the occurrence of the alleged offences under consideration more likely.
In my view the conviction on count 1 on the indictment does not add anything to the likelihood that the appellant committed the alleged offences. That is because it was committed as part of the same incident which constituted the proved offence, and so any propensity which flows from that incident is already present as a result of the conviction for the proved offence. Secondly, I do not accept that a conviction for showing two boys a video containing indecent material in the circumstances which apply here, demonstrates either a sexual interest in boys or a tendency to act on any such interest by committing contact offences, which are the alleged offences.
Similarly, I do not find that the search evidence makes the occurrence of the alleged offences more likely. It occurred many years later and did not involve contact offending. In my view it does not evince a willingness to act on any sexual interest in children other than by, possibly, entering search terms into a device associated with young children. Furthermore, even if it is evidence of a sexual interest in children, it does not mean that that sexual interest existed many years before.
The respondent says that these matters in combination are strongly probative as to whether the alleged offences occurred and increase the probability that they did.
Although the 1994 conviction makes the occurrence of the alleged offences more likely, I still need to be satisfied on the balance of probabilities that the alleged offences occurred.

Conclusion

In cases of this sort there is usually very little corroborative evidence and nor is there any requirement for that sort of evidence.
In determining whether I am satisfied to the required standard that the alleged offences occurred, I would therefore need to be satisfied on the balance of probabilities of the truthfulness, accuracy and reliability of the respondent's evidence before I could find the alleged offences or any of them occurred.
On the evidence before me I am not satisfied that the alleged offences or any of them occurred.
I am not satisfied because of a combination of the following reasons:
1.The material contained in the various reports which details the respondent's history of delusions. I appreciate that Dr Brett said that the appellant appeared capable of giving a coherent, chronological account of his events which did not appear to relate to his previous delusional system. However, I note that Dr Brett's report was prepared prior to the trial where the accused was acquitted of all of the offences apart from counts 1 and 2. I also note the contents of Dr Pascu's report, also prepared prior to the criminal trial, where she said that it is difficult to know whether the appellant's allegations regarding the sexual abuse are delusional or not. Dr Pascu said in her report that:
Patients with complex delusional systems will/may over time incorporate in their delusional system people or events that they come in contact with or are familiar with. This may lead to people close to these patients becoming the target of their psychotically driven behaviours, allegations and it is well‑known in the psychiatric literature that people close to or familiar to these patients usually will be more at risk of harm from them.
Notwithstanding the need that Dr Pascu identified to ensure that people who suffer from delusional beliefs but have genuine complaints should not be ignored, I am of the view that there is a real risk here that the respondent's delusional beliefs affect his reliability.
While I do not reject what Dr Pascu and Dr Brett said, I have also had regard to Dr Febbo's reports and the delusional quality of the respondent's beliefs, as well as to the nature of the delusions, which involved some sexual themes including that police and others had raped his girlfriend. Because of those matters, in my view the respondent's delusions are something I do need to take into account in combination with other factors in assessing the respondent's truthfulness, accuracy and reliability.
2.The jury acquitting the appellant of the vast bulk of the charges. I appreciate that the standard of proof, namely beyond reasonable doubt in criminal charges, is considerably higher than the standard to which I must have regard here and I do take that into account. But I also take into account the fact that the jury had the advantage of having the respondent before them and assessing his evidence in a more complete way than is available to me. Ultimately the jury was not satisfied of any offence other than that for which there was corroborative testimony.
3.The fact that the State discontinued some of the charges after proofing the appellant and being of the view that there were no reasonable prospects of conviction. Some of those charges which were discontinued are contained in the alleged offences. Again, in taking this matter into account I am cognisant of the fact that the State had to satisfy itself that the evidence was capable of satisfying a jury beyond reasonable doubt. However, by the time the State made the assessment that there were no reasonable prospects of conviction it had proofed the respondent and was therefore aware of difficulties with his evidence. That was an advantage which the State had which I do not have.
4.The lack of earlier complaint by the respondent. I accept that there are many reasons why complainants in sexual matters may not complain and the respondent has detailed some of those reasons to me including his embarrassment, the fact that he was incarcerated for lengthy periods and the extent of his delusions. There were opportunities for him to complain earlier where he denied that he had been offended against. Ultimately it is not the delay in complaining which is determinative, but that this extended to outright denials that any sexual abuse had occurred. Dr Pascu said, at page 7 of her report:
I note however that over the years [the respondent] has repeatedly denied any history of trauma, physical, emotional or sexual and in the interview for my report dated 22 March 2010 he again denied any trauma.
5.The finding by Prior DCJ, who heard the appellant give evidence, that he would treat the proved offence as a 'one-off' incident.
None of those reasons in isolation is determinative of my finding that I am not satisfied of the occurrence of the alleged offences. It is the combination of those factors which leads me to that finding.

Compensation for the proved offence

Given that the appellant, notwithstanding my findings that I am not satisfied of the occurrence of the alleged offences, will ultimately receive compensation of $50,000 for the alleged offences it is necessary for me to consider whether the proved offence is a related or unrelated offence to the alleged offences. That determination is necessary because if the proved offence is related to the alleged offences, then the maximum amount of compensation available in total for the proved offence and the alleged offences is $50,000 pursuant to s 33 of the Act.
Given that the respondent is to receive $50,000 compensation for the alleged offences, the effect of finding that those offences and the proved offence were related would mean that no further compensation would be payable for the proved offence.
Section 33 and s 34 of the Act provide:
Maximum for multiple related offences
(1)For the purposes of this section, 2 or more offences are related to one another if an assessor is satisfied -
(a)that they were committed at approximately the same time, whether by one person or by 2 or more persons acting in concert; or
(b)that they are related for any other reason.
(2)If as a consequence of the commission of 2 or more related offences, a person -
(a)suffers injury; or
(b)suffers loss as the close relative of a victim who dies as a consequence of one of the offences; or
(c)suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed the maximum amount that may be awarded for the last one of the offences to be committed.
(3)Despite subsection (2), if a person is a close relative of 2 or more victims who die as a consequence of 2 or more related offences and as a result of 2 or more of those deaths -
(a)suffers injury; or
(b)suffers loss as the close relative; or
(c)suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.
Maximum for multiple unrelated offences by one offender
(1)This section applies to and in respect of a compensation application made on or after 23 September 2003.
(2)If as a consequence of 2 or more offences committed by one person that are not related offences within the meaning of section 33(1), another person -
(a)suffers injury; or
(b)suffers loss as a close relative of a victim who dies as a consequence of one or more of the offences; or
(c)suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.
Whilst it may be somewhat of an artificial exercise for me to attempt to determine whether the alleged offences, which I am not satisfied occurred, are related to the proved offence, that is a task which I necessarily must perform.
Ultimately, I am satisfied that the proved offence is unrelated to the alleged offences. I make that finding because:
(a)the offences are different in nature. The proved offence involved showing videos to the respondent, whereas the alleged offences involve contact offending and offending involving sexual penetration;
(b)the proved offence is significantly less serious than the alleged offences. As I have said, the proved offence was described by Prior DCJ as at the lower end of the range of seriousness of offending of that type. The alleged offences could not be so described;
(c)the proved offence and alleged offences represent separate and distinct offences against the respondent; and
(d)the alleged offences and the proved offence occurred on different occasions to each other.
My finding that the proved offence and the alleged offences are unrelated to each other means that the maximum compensation available to the respondent for the proved offence is $50,000.

Assessment of compensation - general principles

Compensation is payable for injury suffered in the commission of an offence: s 12 of the Act.
By virtue of s 3, 'injury' includes bodily harm and mental and nervous shock. Relevantly to this case, the respondent is the person against whom the proved offence was committed: s 34(2).
Nervous shock must be more than a mere emotional reaction. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish: Martin v Martin [85].
In fixing the appropriate amount of compensation I apply the ordinary tortious principles for assessment of damages, subject to limitations imposed by the Act with respect to the jurisdictional limit and limitations imposed by the definitions of 'injury' and loss in the Act.
I must have regard solely to the injury suffered by the respondent as a result of the commission of the alleged offence, and not to the seriousness of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: Underwood [115].
There is limited utility in comparing other awards of compensation or damages for personal injuries due to the inability of appellate courts and tribunals to compare like with like: Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [14].
The respondent's counsel referred me to a number of cases including: Re HCM [2018] WADC 20, SJR v JJC [2020] WADC 161, AKM v GJH [2020] WADC 152 and AJH v LAM [2018] WADC 126. I have considered those cases.
An applicant must establish a causal relationship between the commission of the alleged offence and the injury or loss for which the compensation is sought: Re HCM [116]. Whether the requisite causal connection exists is a question of fact to be resolved as a matter of common sense: EB v Ramljak [2021] WADC 134 [36].
It is sufficient for the respondent to establish that the offence materially contributed to any injury or loss. If it is not possible to disentangle the consequences of the offence from the non-compensable event the respondent is entitled to the full amount of compensation, provided it is established that the compensable offence contributed materially to the injury or loss: Fagan v Crimes Commission Tribunal (1982) 150 CLR 666, 663.

Determination of compensation for proved offence

I am not satisfied that the proved offence materially contributed to the injuries and loss suffered by the respondent. I am fortified in that view by the supplementary report of Dr Cocks dated 28 June 2024, who opined in precisely those terms. He went on to say 'in my opinion, the contribution of the Proven Offence in isolation was negligible'.
I do not accept that the showing of a video of boys showering, both naked and in their bathing suits, in isolation caused the catastrophic consequences outlined by the respondent.
The respondent says in the 2021 statement that the day the appellant first showed him pornography was the beginning of the end of his life and, that once the abuse started, he started to act out. However, the respondent testified at trial that he was diagnosed with ADHD prior to meeting the appellant, was a naughty kid, was being treated by a psychiatrist for ADHD and that he (the respondent) was hanging around with the wrong crowd at school when he was 12, all of which was prior to the commission of the proved offence. He also gave evidence about having been arrested for stealing cigarettes when he was 13.
Dr Pascu's report, which I have already summarised, spoke of the respondent stealing from the age of 12 and his disruptive and destructive tendencies from infancy.
I accept that these matters are not particularly significant in themselves, but they do undercut the submission that all of the respondent's issues occurred as a result of the proved offence (or indeed the alleged offences).
Furthermore, at least part of the respondent's description of the proved offence included the appellant masturbating in his presence: par 20 of the 2021 statement. That was not a detail about which the respondent gave evidence during his initial examination‑in‑chief (ts 270), although he later returned to that topic and gave that evidence.

The proved offence did not include the appellant masturbating in the respondent's presence and was not one of the findings of fact made by Prior DCJ. Such an event would have been inconsistent with his Honour's description of the offence as being towards the lower end of the range of seriousness of offending of that type.
I have no doubt that the respondent suffers from a number of significant and unfortunate mental health conditions, however I do not find that the proved offence materially contributed to those issues. A finding that the proved offence did materially contribute to those issues would be contrary to the conclusion reached by Dr Cocks. It would also not, in my view, be a causal connection open to me if I apply common sense.
I therefore order no compensation for the proved offence.

Orders

The orders I propose are as follows:
1.The appeal be allowed in part.
2.The decision of the Assessor be varied so that no compensation be paid to the respondent for the claim made under s 12 of the Criminal Injuries Compensation Act 2003 (WA).
I will hear the parties as to costs.

APPENDIX A

DOCUMENTS BEFORE THE ASSESSOR

Order of Assessor Renea Andrea Capararo, 14 June 2022.
Application for Criminal Injuries Compensation dated 6 August 2021.
Statement, FGT, 20 January 2021.
Statement, FGT, 28 August 2015.
Indictment 858 of 2016, 16 March 2018.
Sentencing Transcript, Perth District Court, Indictment 858 of 2016, 4 April 2018, Prior DCJ.
Email, Belinda Michalk, 12 February 2021.
Letter, Belinda Michalk, 12 February 2021.
Email, Michelle McNamara, 20 January 2022.
Email, Michelle McNamara, 13 May 2022.
Notice to produce documents, Director of Public Prosecutions, 24 February 2021.
Notice to produce documents, Department of Justice (Corrective Services), 24 February 2021.
Letter to Appellant, 26 February 2021, providing Appellant with an opportunity to make submissions.
Letter to Respondent's solicitors, 30 July 2021, requesting a signature in Part E of the application form.
Letter to Respondent's solicitors, 20 August 2021, attaching a letter from the Assessor of the same date, inviting submissions on the subject of the Respondent's ability to deal with a larger sum of money.
Letter to Respondent's solicitors, 21 January 2022, regarding no estimated time frame for decision.
Letter to the Appellant, 14 June 2022, enclosing Assessor's Compensation Award.
Letter to the Respondent's solicitors, 14 June 2022, enclosing Assessor's Compensation Award.
Psychiatric Report, Dr Adam Brett, 10 May 2017.
Psychological Report, Diane Paddon-Jones, relating to an assessment on 27 April 2020.
Social Worker Report, Annie Rickman, undated.

APPENDIX B

OTHER MATERIAL PROVIDED TO THIS COURT

Offender Services - Prisoner Counselling Filenotes.
Graylands Hospital discharge summaries.
The Medical Record for FGT, consolidated to 7 November 2022.
Reports of Dr Sam Febbo, Consultant Psychiatrist, dated:
(a)26 October 2012;
(b)31 August 2012;
(c)6 July 2012;
(d)22 June 2012;
(e)16 May 2012; and
(f)4 May 2012.
Report of Dr Natalia Bilyk, on Serco letterhead, dated 24 May 2017.
Documents produced by the Director of Public Prosecutions in response to a notice to produce, including:
(a)Certificate of Final Outcome of Charge, 11 April 2017;
(b)Certificate of Final Outcome of Charge, 6 April 2018;
(c)Victim Impact Statement of FGT, unsigned, 16 January 2016;
(d)Indictment No 858 of 2016, 25 August 2016; and
(e)Brief for prosecution, as indexed 19 March 2018.
Certificate of name change appellant, 8 February 1993.
Certificate of name change, appellant to ABC, 2 January 1996.
Newspaper extract, Sunday Times, 5 June 1994.
Newspaper extract, Midland Reporter Community, 23 August 1994.
Offence Report 140194 2337 7115, 14 January 1994.
Incident Report 190913 0940 13062 (redacted).
Statement to police, Bradley Willoughby, 13 March 2015.
Handwritten police notes, 5 May 2015.
Handwritten notes, '1026hrs Hakea Remand Centre', 5 May 2015.
Handwritten notes, '1330hrs - 1520hrs 19/5/15', 19 May 2015.
Statement to police, Paul Andrew Matthew Rayner, 31 August 2015.
Statement to police, Beverley Ann Hanson, 8 October 2015.
Statement of material facts, Brief 1394196-1, Accused ABC.
Indictments and Discontinuances of charges (no indictment), ABC (All No. 858 of 2016):
(a)Discontinuances of charges (no indictment), 26 August 2016;
(b)Indictment, 25 August 2016;
(c)Discontinuances of charges (no indictment), 17 January 2017;
(d)Indictment, 25 August 2016;
(e)Discontinuances of charges (no indictment), 21 March 2018; and
(f)Indictment, 16 March 2018.
Transcript of proceedings, Perth District Court, Levy DCJ, 22 September 2017.
Extract from transcript of proceedings, Perth District Court, Prior DCJ, 21 March 2018, pages 207, 259 - 304.
Extract from transcript of proceedings, Perth District Court, Prior DCJ, 22 March 2018; pages 305 - 343.
Extract from transcript of proceedings, Perth District Court, Prior DCJ, 22 March 2018; pages 343 - 426.
Extract from transcript of proceedings, Perth District Court, Prior DCJ, 23 March 2018; pages 427 - 459.
Extract from transcript of proceedings, Perth District Court, Prior DCJ, 23 March 2018; pages 460 - 468.
Extracts from transcript of proceedings, Perth District Court, Prior DCJ:
(a)23 March 2018; pages 427, 493 - 495;
(b)26 March 2018, pages 496, 570 - 572; and
(c)27 March 2018, pages 576, 596 - 601.
Extract from Transcript of proceedings, Perth District Court, Prior DCJ 29 March 2018, pages 729 -737.
Psychiatric Report on FGT, Dr Victoria Pascu, 29 December 2017.
Unit Review Form, 'TJ Tate' undated.
Discharge summary, Graylands, FGT, discharge 2 February 2001.
Discharge summary, Graylands, FGT, discharge 4 June 2002.
Prison Counselling Service notes, FGT, 19 June 2003.
Prison Counselling Service notes, FGT, 20 June 2003.
Prison Counselling Service notes, FGT, 21 June 2003.
Prison Counselling Session File Note, FGT, 3 October 2007.
Extract from [prison] medical notes, FGT, 11 May 2010, 7 May 2010 (in part).
Psychiatric report on FGT, Dr Sam Febbo, 4 May 2012.
Extract from [prison] Medical Record, FGT.
Bundle of medical records for respondent produced by Commissioner Corrective Services in response to a notice to produce dated 3 November 2022.
Reports from Dr Chris Cocks, dated 2 May 2024, 28 June 2024 and 23 July 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SK
Associate to Judge Massey
14 NOVEMBER 2024