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ATS v Williss

ATS v Williss

Case [2021] WADC 58 29 June 2021

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ATS -v- GREG WILLISS [2021] WADC 58
CORAM:   GOETZE DCJ
HEARD:   19 FEBRUARY, 5 MARCH & 20 APRIL 2021
DELIVERED          :   29 JUNE 2021
FILE NO/S:   APP 59 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ATS
Appellant
AND
GREG WILLISS
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   1231/2019

Catchwords:

Criminal injuries compensation - Appeal from assessor's refusal to award compensation based on an alleged contemporaneous offence by the appellant, alternatively her behaviour at the time of the incident

Legislation:

Criminal Code 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Compensation award for the appellant in the sum of $33,322

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance
Amicus Curiae	:	Mr J F Bennett on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

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

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

ATS v WLS [2005] WADC 223
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Devos v James [2009] WADC 161
Hansen v Bolton (2017) 91 SR (WA) 137
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Richardson [2009] WADC 93
Re TLJ [2016] WADC 74
Re Zadeh [2015] WADC 136
Robertson v Hopwood [2018] WADC 66
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13; (2018) 94 SR (WA) 57

GOETZE DCJ:

On 3 December 2017, the respondent Gregory Raymond Williss unlawfully assaulted the appellant ATS. On 28 August 2018, he pleaded guilty to having committed that offence.
Ordinarily, a conviction for an unlawful assault would permit any victim of that offence who suffered injury, loss and damage therefrom to be awarded criminal injuries compensation under the Criminal Injuries Compensation Act2003 (WA).
However, in this case, such an award was refused by reason that the learned assessor of criminal injuries compensation determined that the assault by Mr Williss was in retaliation to the commission of an assault by ATS upon Mr Williss, alternatively by reason of her behaviour, condition, attitude or disposition towards Mr Williss having significantly contributed to her receiving injuries.
ATS appeals the learned assessor's refusal to make a compensation award in her favour.
Mr Williss did not take part in the appeal.

The nature of the appeal

By s 56(1) of the Act, an appeal against an assessor's decision is to this court which:
… 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.

The issues

The primary issues in this appeal are:
1.Did ATS commit a separate offence of assault upon Mr Williss at the time…

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 ATS v Williss

Details

AGLC: ATS v Williss [2021] WADC 58
Case: [2021] WADC 58
Decision Date

CaseChat Overview and Summary

In this case, the appellant, ATS, appealed against the refusal of the respondent, Gregory Williss, to award her compensation under the Criminal Injuries Compensation Act 2003 (WA). The appeal was heard by Goetze DCJ in the District Court of Western Australia. The primary issues in this appeal were whether ATS committed a separate offence of assault upon Williss at the time he committed an assault upon her, whether the behaviour, condition, attitude or disposition of ATS contributed to her injuries, and if appropriate, the quantum of compensation to be awarded.

The court found that ATS did not commit a separate offence of assault upon Williss, and that her behaviour, condition, attitude or disposition did not contribute to her injuries. The court found that the first act of violence was committed by Williss when he pushed ATS in the chest and grabbed her neck. ATS's act of self-defence was justified, and her act of walking away from Williss, with her back to him, was an act of retreat. The court found that there were some short term physical difficulties and long term sequelae relating to the assault, and that the assault had set back ATS's complex traumatic stress disorder in a significant manner.

The court awarded ATS compensation in the sum of $33,322, plus any other future treatment expenses reasonably incurred by reason of the assault as provided by s 48 of the Act. The court also allowed the past known medical expenses of $2,013 and Dr Semmens report fees of $1,309.

Orders