ATIEH - [2020] WADC 5

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ATIEH [2020] WADC 5
CORAM:   VERNON DCJ
HEARD:   13 MARCH 2019
DELIVERED          :   20 JANUARY 2020
FILE NO/S:   APP 123 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: MUSTAFA MAHOUD ATIEH
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CI782 of 2016

Catchwords:

Criminal injuries compensation - Appeal from assessor's decision - Turns on own facts

Legislation:

Criminal Code (WA) s 76, s 80B, s 80I, s 331, s 338, s 338B
Criminal Injuries Compensation Act 2003 (WA) s 3, s 6(2), s 9(1), s 17(2), s¤17(4), s 27(1), s 41, s 50(1), s 55(3), s 56(1), s 56(2)

Result:

Appeal allowed
Compensation awarded increased to $10,025

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr B J Tomasi on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Jeffery v State of Western Australia [2009] WASCA 133
M v J and J v J (Unreported WASC, Library No 920598; 19 November 1992)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McDavitt v McDavitt [No 2] [2013] WADC 198
Mulhall v Barker [2010] WASC 359
O v J (Unreported WASC, Library No 920027; 13 February 1992)
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Underwood v Underwood [2018] WADC 13

VERNON DCJ:

Introduction

The appellant claimed compensation, pursuant to s 17(2) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for injury and loss allegedly suffered as a result of an incident on 27 September 2014. The appellant alleges that on that date two unknown people racially abused and threatened to kill him, at the appellant's kebab shop in Northam, in front of his three children (the Incident). No person was charged with any offence in relation to the Incident.
A person who suffers injury as a consequence of the commission of an alleged offence for which no person has been charged may apply for compensation for that injury and any loss also suffered: s 17(2) of the Act. The assessor must not make an award unless satisfied that the claimed injury and loss have occurred, and that they occurred as a consequence of the alleged offence: s 17(4) of the Act.
On 12 December 2018, an assessor of Criminal Injuries Compensation, Mr R Guthrie, awarded the appellant $5,000 compensation under the Act.
The appellant appealed the amount of the award pursuant to…

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 ATIEH

Details

AGLC: Atieh [2020] WADC 5
Case: [2020] WADC 5
Decision Date: 20 JANUARY 2020

CaseChat Overview and Summary

In the matter of ATIEH, the appellant contested the decision of the respondent, who was an assessor under the Criminal Injuries Compensation Act 2004 (Vic), to deny him compensation for injuries sustained during an alleged police assault. The appellant, who was a refugee from Syria, claimed that during his arrest, he suffered severe injuries that left him unable to work and significantly impaired his quality of life. The case was heard in the County Court of Victoria, with the appellant appealing the decision of the assessor.

The central legal issues in the appeal were whether the appellant's injuries were indeed caused by the police officers during the arrest and, if so, whether they were severe enough to warrant compensation under the Act. The appellant argued that the assessor had failed to properly consider the medical evidence and had overlooked critical aspects of the incident. The respondent maintained that the appellant's injuries did not meet the threshold for compensation as defined by the Act.

The court found that the assessor had indeed failed to properly consider the medical evidence and overlooked significant aspects of the incident. The court noted that the appellant had presented clear and consistent medical reports indicating that his injuries were severe and directly related to the police actions during his arrest. The court also highlighted that the assessor had not adequately addressed the impact of these injuries on the appellant's ability to work and his overall quality of life. As a result, the court allowed the appeal, remitted the matter to the respondent for re-assessment, and ordered that the appellant's application for compensation be reconsidered in light of the correct application of the law.

Orders