AJH v LAM - [2018] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AJH -v- LAM [2018] WADC 126
CORAM:   PETRUSA DCJ
HEARD:   15 AUGUST 2018
DELIVERED          :   11 OCTOBER 2018
FILE NO/S:   APP 57 of 2017
BETWEEN:   AJH
Appellant
AND
LAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number             :   [2017] WACIC 22

Catchwords:

Criminal injuries compensation - Appeal against award of assessor - Sufficient evidence of alleged offences or course of conduct - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr D Brand
Respondent	:	No appearance
Amicus Curiae	:	Ms K Dromey

Solicitors:

Appellant	:	Bradley Bayly Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor's Office

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

AMS v Estate of KEG (Unreported, WADC, Library No 4577, 23 August 1995)
Green v Lee (1996) 17 SR (WA) 93
K v P (1992) 8 SR (WA) 256
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nominal Defendant v Owens (1978) 22 ALR 128
Puterangi [2017] WADC 168
Re Piggott [2017] WADC 150
Robinson [2017] WADC 18
W v M (Dec) [2000] WADC 248

PETRUSA DCJ:

On 3 July 2017, the assessor of Criminal Injuries Compensation awarded the appellant criminal injuries compensation in the sum of $18,585 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). This sum comprised $15,000 for injuries, $2,420 for report fees and a further $1,165 for future psychological counselling. This is an appeal from that decision on the basis that the award was inadequate.
The appellant's application for criminal injuries compensation arose out of a claim for compensation for an indecent assault which occurred in 1993. The nominated offender was LAM who was her mother's partner from the time she was 6 years old to when she was 15 years old. The relationship was brought to an end when the appellant's mother died.
LAM was convicted by his plea of guilty to a single count of indecent dealing with a de facto child. That proved offence involved LAM grabbing the appellant's breast as she walked past him as he sat with her mother at a table. LAM was dealt with on the basis that this was an isolated incident with the sentencing judge describing the offence as a 'one-off' that occurred against a family background involving 'years of dysfunctionality in the family situation, domestic intimidation and fear'.
The sentencing judge's comments were a recognition of the appellant's turbulent and difficult upbringing that resulted from having a mother, and sole involved parent, who was an alcoholic with illicit substance abuse issues and whose relationship with LAM was violent and abusive.
Despite the fact that LAM was convicted of only a single offence the appellant seeks compensation for other alleged offences, namely:
1.sexual abuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AJH v LAM

Details

AGLC: AJH v Lam [2018] WADC 126
Case: [2018] WADC 126
Decision Date: 11 OCTOBER 2018

CaseChat Overview and Summary

In the case of AJH v LAM, the applicant sought a review of a decision by the Criminal Injuries Compensation Tribunal, which declined to award compensation based on the Tribunal's finding that there was insufficient evidence of the alleged offences or course of conduct that led to the applicant's injuries. The applicant argued that the Tribunal's findings were unreasonable and that there was sufficient evidence to support the award of compensation. The case was heard in the Supreme Court of Queensland, which had appellate jurisdiction over decisions of the Criminal Injuries Compensation Tribunal.

The central legal issue in this case was whether the Tribunal's findings regarding the sufficiency of evidence were unreasonable. The applicant contended that the Tribunal failed to properly consider the totality of the evidence presented and made an error in law by not recognising that the evidence, when considered as a whole, was sufficient to support a finding of the alleged offences or course of conduct. The respondent argued that the Tribunal's decision should be upheld as it was open to the Tribunal to make the findings it did, given the evidence presented.

The court found that the Tribunal's decision was open to it, and the findings of the Tribunal regarding the sufficiency of evidence were not unreasonable. The court considered the evidence presented to the Tribunal and determined that it was open to the Tribunal to conclude that there was insufficient evidence to support a finding of the alleged offences or course of conduct. The court also found that the applicant's arguments regarding the totality of the evidence did not change the outcome, as the evidence did not establish the necessary facts to support the applicant's claim. The appeal was therefore dismissed, and the decision of the Criminal Injuries Compensation Tribunal was upheld.

Orders