Bennetts v Smith - [2022] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BENNETTS -v- SMITH [2022] WADC 32
CORAM:   GILLAN DCJ
HEARD:   23 MARCH 2022
DELIVERED          :   8 APRIL 2022
FILE NO/S:   APP 22 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   LUKE EDWARD BENNETTS
Appellant
AND
DEANNE LOUISE VALDA SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 157 of 2019

Catchwords:

Criminal injuries compensation - Appeal - Proved offence - Admission of additional evidence - Conduct of the respondent

Legislation:

Bail Act 1982 (WA)
Criminal Code
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal not allowed
Award of the Assessor confirmed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance
Amicus Curiae	:	Mr Z R Clifford 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):

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennett v The State of Western Australia [2012] WASCA 70
Humphry v The Queen [2003] WASCA 53
Hutchings v Lachlan [2012] WADC 89
McDavitt v McDavitt [2013] WADC 22
Re Richardson [2009] WADC 93
Re Tilbery [2010] WADC 46
Robertson v Hopwood [2018] WADC 66
Sunderland [2011] WADC 97
Underwood v Underwood [2018] WADC 13
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95

GILLAN DCJ:

In the relevant period, including between April 2017 and July 2017, the appellant, Mr Bennetts, and the respondent, Ms Smith were in a relationship and were living together in a house in Stirling.
On 10 April 2017 Mr Bennetts entered a plea of guilty in the Magistrates Court at Perth on his plea of guilty to the offence of aggravated assault occasioning bodily harm (AAOBH).[1] The offence date was 9 April 2017. The victim was Ms Smith.
[1] The transcript of 10 April 2017 is not before the court. Letter from OCIC to Mr Bennetts dated 15 June 2019 refers to the conviction date as being 10 April 2017. The transcript of an appearance in the Magistrates Court in Perth on 25 June 2017 with respect to the breach of bail charge refers to an earlier plea of guilty and an application to set aside a plea. The transcript of the sentencing hearing on 16 August 2017 similarly refers to an application to set aside the plea not being pursued and the matter then proceeded to sentence.
From 21 June 2017 Mr Bennetts was on bail for the AAOBH on conditions that included protective bail conditions not to be within 20 m of Ms Smith.
On 24 June 2017 Mr Bennetts and Ms Smith were in a car in Jurien Bay. Mr Bennetts was arrested and brought before the Magistrates Court on 25 June 2017 at which time he was convicted on his plea of guilty of being in breach of the protective bail conditions. Mr Bennetts was fined $500.
Mr Bennetts was not sentenced with respect to the AAOBH until 16 August 2017 when he was sentenced to a 12-month community based order with programme and supervision requirements. He did not comply with the programme requirements so was brought before the Magistrates Court on a breach and was resentenced on 31 January 2018. Nothing would appear to turn on the fact it was necessary to resentencing him.
By an application dated 14 January 2019 Ms Smith made an application for criminal injuries compensation.[2] In response to questions on the application form as to the nature of the incident to which the application referred, she answered 'assault' and in response to a question as to what Mr Bennetts was charged with she answered that she could not recall but that it was 'something causing bodily harm'.[3]
[2] Matter Book (MB), Application 13 - 17, Ms Smith's statement and supporting documents 18 - 30.
[3] MB 14.
Ms Smith's statement in support of the application refers Mr Bennetts having been charged when he 'physically assaulted her and chased [her] to the police station trying to run [her] off the road and was found guilty in August 2017'.[4]
[4] MB Ms Smith's statement 18.
Ms Smith's statement, inter alia, gives details of further alleged assaults during the course of their relationship before indicating that she finally left the relationship and they separated on 10 October 2017.[5]
[5] MB Ms Smith's statement 20.
Neither Ms Smith's application nor her statement seek to rely on any injury caused by the offence relating to the breach of bail condition.
On 31 March 2021 the Assessor of Criminal Injuries Compensation (Assessor) made a compensation award pursuant to the Criminal Injuries Compensation Act 2003 (WA) (CICA) in favour of Ms Smith expressed to be as a consequence of Mr Bennetts injuring her on 9 April 2017 at Stirling for which he was convicted in the Magistrates Court on 25 June 2017 of aggravated assault occasioning bodily harm and breach of protective bail conditions. Ms Smith was awarded the sum of $13,601 compensation made up of:
1.$12,143 to be paid to the respondent; and
2.up to $1,458 to be paid subject to the provisions of s 48 of CICA for counselling.
Pursuant to s 45(1)(b) of CICA, the Assessor stated that only $10,000 may be the subject proceedings in pt 6 of the Act.
The Assessor gave written reasons dated 22 April 2021 (Reasons). I will refer to his Reasons in more detail below.
Mr Bennetts appealed to this court relying on three grounds that:
1.The Assessor failed to consider adequately or at all whether Ms Smith was committing a separate offence at the time each offence was committed by the appellant.
2.The Assessor failed to consider adequately or at all the behaviour of Ms Smith and whether it warranted a refusal of or reduction in the award.
3.The award was manifestly excessive.
The primary issues in this appeal are:
1.Did Ms Smith commit any offence sufficient to preclude her from entitlement to compensation?

2.Did the behaviour, condition, attitude or disposition of Ms Smith contribute, directly or indirectly, to her injuries?

3.If either of those matters are proven and taken into account, if it is appropriate to make an award, the quantum of which must be determined?
4.If those matters are not proven and so are not taken into account, is it appropriate to make an award, the quantum of which must be determined?

Background and the Reasons

The statement of material facts for the charge of AAOBH states that:
At 7:30 PM Sunday, 9 April 2017 the accused and the victim were in the bedroom at the home in Stirling. Victim and the accused had been in a family and domestic relationship for approximately eight months.
A verbal argument has taken place between the accused and the victim.
The accused approached the victim, she backed away from him and crouched down. The accused grabbed the victim's hair and pushed her head down so it hit her knees.
The victim picked up a shoe and threw it at the accused, hitting him in the right side of the head.
The victim then ran out of the bedroom, down the stairs, out the front door, across her garden and the other side of the street. The accused, who was naked, chased her.
When the victim reached the opposite side of the road, the accused caught up with her and pushed her, face first, into some bushes at the side of the road, causing cuts to her forehead, right arm and both legs, which bled.
Whilst the victim was laying in the bushes, the accused kicked her legs before returning to their house.
Shortly afterwards, the victim got into the car and drove away from the house. The accused heard the victim leave, got into his van and followed her.
The accused tried repeatedly to get the victim to stop the vehicle by flashing his vehicles lights, using his vehicle horn and pulling his vehicle in front of the victim's vehicle while on the freeway and breaking his vehicle in front of her.
When the accused chased her to vehicle, the victim drove to Mirrabooka police station and parked in the car park. The accused followed her and stood outside the driver's door of her vehicle, causing her to call police to come and assist her as she was too frightened to exit the vehicle.
Police attended and arrested the accused. He participated in the electronic record of interview at Mirrabooka police station.
The accused was refused bail with the present charge preferred.
The statement of material facts for the breach of bail conditions states that:
On Wednesday 21 June 2017, the accused entered into a bail undertaking to appear at the Perth Magistrates Court at 8.30 am on Wednesday 26 July 2017. A part of the conditions imposed on the accused in the bail undertaking was that the accused was not to contact or attempt to contact Deanne Louise Valda SMITH by whatever means or be within 20 metres of that person.
This condition was set under clause 2(2)(c) or 2(2)(d) of Part D of schedule 1 of the Bail Act 1982. About 8.33pm on Saturday 24 June 2017, the accused drove a Nissan Patrol station sedan, bearing registration number, 1GEV824, on Premier Drive, near Canover Road, Jurien Bay WA 6516.
Also present in the vehicle was the accused's partner, Deanne Louise Valda SMITH. The accused was stopped and spoken to in relation to another matter.
As a result of a conversation with the accused, it was established that the accused was in breach of the protective bail conditions. The accused was arrested and his bail refused with the present charge preferred.
In the Reasons the Assessor referred to the incident on 9 April 2017 as the principal event in the application. He found the facts relating to 9 April 2017 substantially in accordance with the statement of material facts. He said the dates provided in the application were not accurate but that he had investigated the matter, established that there had been two convictions and therefore took the application to be an approximation of those incidents.
With respect to the AAOBH, the Assessor said that Mr Bennetts' version of events varied from that outlined by the Assessor but that the version of events the Assessor outlined was consistent with the statement of material facts provided to the Magistrates Court and given that the accused had entered a plea of guilty to those facts the Assessor considered he was bound by the version of events in the statement of material facts, notwithstanding that the statement of material facts also recorded that in the interview Mr Bennetts had denied that he hit Ms Smith but did admit that he had chased Ms Smith into the bushes.
The Reasons do not refer to the facts relating to the breach of protective bail conditions on 24 June 2017.
The Assessor accepted that given the medical evidence including a report dated 8 July 2020 from a clinical psychologist along with the police brief and noting the circumstances of the incident he was satisfied that the applicant had sustained physical injuries when she was assaulted by kicking and forcing her into the bushes and that as a result of the incident the applicant has suffered mental and nervous shock.

The nature of the appeal and the admission of further evidence

On the hearing of the appeal, s 56(1) of CICA requires me to determine the application afresh without being fettered by the determination of the Assessor.
Further, by that section, I can determine the claim solely on the evidence and information that was in the possession of the Assessor or I may receive further evidence and information. The discretion to admit further evidence on appeal should be exercised without undue restriction because of the beneficial purpose of the Act, that the Assessor is not bound by the rules of evidence and the Assessor's determination is informal: Re Tilbery [2010] WADC 46 [3]; Sunderland [2011] WADC 97.
The Reasons record that the Assessor had before him an electronically recorded interview of Mr Bennetts by the police on 10 April 2017[6] (EROI). I am satisfied that the Assessor had the EROI even though it was not part of the material produced by the Assessor's office. The Commissioner of Police produced a copy of the EROI which I have reviewed on the basis that it was part of the record before the Assessor.
[6] MB 3 - 4: Assessors Reasons.
Prior to this appeal coming on for hearing, orders were also made enabling the court to obtain a copy of the transcript of the hearings in the Magistrates Court on 25 June 2017, 16 August 2017 and 31 January 2018. Those materials were not, it would appear, before the learned Assessor. In my view those transcripts are important in a consideration of this appeal and should be received pursuant to my discretion to admit further evidence for purposes of the determination of the appeal.

To what extent are the parties bound by the facts of the proven offences and what facts are proven by the convictions?

In Underwood v Underwood [2018] WADC 13 [55] ‑ [62] Gething DCJ helpfully summarised the relevant principles as they relate to a CICA appeal, by reference to the reasons of Martin CJ and Buss JA Bennett v The State of Western Australia [2012] WASCA 70, as follows:
First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
Fourth, a claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence.  This is for two reasons.  The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1).  The evidence of a 'proved offence' must reflect the second and third principles.  The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence.  This would lead to the re-litigation of the facts which led to the proved offence.
Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence: Bennett [67]. This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief.  On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence.  These other facts or circumstances are not incontrovertible.
Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles.  The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
The transcript indicates that the hearing of 16 August 2017 had been listed for the purpose of an application by Mr Bennetts to set aside his guilty plea with respect to the AOBH. Counsel for Mr Bennetts indicated that application would not be pursued and the matter could proceed to sentencing. The transcript also records that not all of the facts contained in the statement of material facts were accepted by Mr Bennett for the purpose of sentencing.
After the material facts were read, counsel for Mr Bennetts took issue with the allegation that he had pushed Ms Smith into the bushes and said Mr Bennetts 'denies actually physically pushing [Ms Smith] he accepts that he chased her and, as a result, she was running from him'.
Counsel then referred to an authority on causation and went on to say:
So it's the causation factor that he's guilty of, regardless - he - he denies ever pushing her into that garden, and once she went in, he has run into her as well and has fallen into her. So yes, he has kicked her but it wasn't a deliberate kick. … if it was not for him chasing her, she would not have fallen into the bushes that she did.
Mr Bennetts' plea of guilty admits to the elements of the AAOBH charge and also that any potentially available defences could not have any application to the facts underlying the elements.[7]
[7] In this case potentially self-defence and provocation.
The elements of AAOBH are identity, that Mr Bennetts committed an assault on Ms Smith, the assault was unlawful,[8] that Ms Smith suffered bodily harm and that bodily harm was caused by the assault.
[8] Unlawful means that the assault was not authorised, justified or excused by law.
The term assault is, relevantly, defined in s 223 Criminal Code (WA) as:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, … or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The facts as were contended for by Mr Bennetts could constitute an assault within that definition. Deliberately chasing Ms Smith would be a bodily act or gesture or an attempt or an implied threat to apply force to her under circumstances that he had the actual or apparently a present ability to effect that purpose.
At the sentencing hearing the State did not raise any issue with the facts as outlined by Mr Bennetts' counsel or press the version in the statement of material facts. The learned magistrate was not asked to and did not hold a trial of the issue as to any facts in dispute. While the learned magistrate did not state his findings of fact for the purpose of sentencing Mr Bennetts, his Honour did not indicate that sentencing was on anything other than the basis put forward by Mr Bennetts. In my view the learned magistrate by implication has adopted the version of facts put by Mr Bennetts' counsel.
For the purpose of my consideration of this appeal, my view is that with respect to the facts establishing the elements of the offence of AAOBH, I am bound to proceed on the basis of the statement of material facts except where the material facts differ to the facts on which the guilty plea was entered as stated by counsel for Mr Bennetts. Where the facts differ, I am bound to proceed on the facts as stated by counsel for Mr Bennetts as impliedly accepted by the learned magistrate.
The corollary of this is that Mr Bennett is bound by his plea to the material facts where they state that Ms Smith suffered bodily harm described as being cuts to her forehead, right arm and both legs which bled and that it was his assault of Ms Smith which caused that bodily harm.
Any material before me relied on by Mr Bennetts as establishing the contrary position along with his oral submission at the hearing of the appeal that he did not cause that bodily harm by that assault and it might have been caused by Ms Smith harming herself, must be put to one side.

Further, Mr Bennetts must also be taken to have entered his plea on the basis that he has considered the facts relevant to the events and accepted that none of those facts would give rise to any defence to the effect that the assault was lawful, in other words that there are no facts which might authorise, justify or excuse his assault. In this case the defences of self-defence or provocation had the potential to arise out of a contention that Ms Smith had first assaulted him.
That does not mean that the Assessor or the court are bound by the peripheral facts which do not go to prove the elements of the offence with which Mr Bennetts was charged or which fall outside the facts central to the scope of any defence he must necessarily have discounted by his plea.
To the extent that there are facts in that category relevant to the resolution of the matter, the Assessor and the court must determine the facts on the balance of probabilities: McDavitt v McDavitt [2013] WADC 22 [30] ‑ [31].
To the extent that Mr Bennetts' conviction for breach of bail conditions had any role to play before the Assessor or before this court, which I will address below, there is no reason for me to proceed on any basis other than the statement of material facts for that matter. No issue was taken with those facts when Mr Bennetts was sentenced on 25 June 2017.

Issues in the Appeal

Issue 1: Did Ms Smith committed any offence sufficient to preclude her from entitlement to compensation?

Section 39(1) of CICA provides:
If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The leading authorities on s 39(1) of CICA are Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 and Hutchings v Lachlan [2012] WADC 89 [32] where Commissioner Gething summarised the principles.
In Attorney General for Western Australia v Her Honour Judge Schoombee, the Court of Appeal followed Re Richardson[2009] WADC 93 [31] said that:
I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
Drawing heavily on Commissioner Gething's summary, I summarise the principles as follows:
(a)the term 'when' in s 39(1)(b) does not require a causal connection between any offence committed by the claimant and the offence giving rise to the claimant's injuries;
(b)the term 'when' in s 39(1)(b) requires a temporal connection between any offence committed by the claimant and the offence giving rise to the claimant's injuries;
(c)the temporal connection does not require the claimant's offence to be committed at the same instant in time as the offence giving rise to the claimant's injuries; and
(d)whether there is a temporal connection requires judgement of all the facts and circumstances of the case to determine whether at the time the claimant was injured the claimant was committing a separate offence. This will include consideration of whether the claimant's separate offence and claimant's injuries are part of the one incident.
It is clear from the Reasons that the Assessor did not separately turn his mind to a consideration of whether Ms Smith was at the time of the offence against her committing an offence. In any event, the CICA requires me to independently consider whether that contention can be made out.
Dealing first with the material relevant to the AAOBH and in support of the contention that Ms Smith threw a shoe at Mr Bennetts and whether that action constituted the offence of assault within the Criminal Code.
With respect to throwing the shoe, the statement of material facts states that Mr Bennetts 'first approached [Ms Smith]. She backed away and crouched down. [Mr Bennetts] grabbed [Ms Smith] by the hair and pushed her head down so that it hit her knees. [Ms Smith] picked up a shoe and threw it at [Mr Bennetts] hitting him in the right side of the head ...'.
At the sentencing hearing on 16 August 2017 Mr Bennetts did not take issue with that part of the statement of material facts.
The facts about this issue as set out in the statement of material facts is based on Ms Smith's statement to police on the evening of 9 April 2017.[9] Ms Smith is recorded as saying that at a point in time Mr Bennetts 'Got really mad - was instant. Got up - came straight at me. Leaned back against the wardrobe, crouched down grabbed my hair and slammed my head down into my knees'. The notes go on to record that Mr Bennetts got onto the bed and 'I got angry and I picked up one of his shoes and threw it at him'. She then recounted that 'He got really mad, I started running down the stairs across the road'.
[9] MB 187: Police notes.
In my view, the action in grabbing Ms Smith's hair and pushing Ms Smith's head down so that it hit her knees forms part of the charged assault even though that part of the assault did not result in bodily harm and Mr Bennetts is bound by his plea to those facts.
If that is wrong, and the facts about Mr Bennetts forcing Ms Smith's head into her knees and her throwing a shoe at him are properly in the nature of peripheral facts, I would nonetheless accept Ms Smith's version of events.
In the conduct of his case Mr Bennetts did not prove to be a credible or reliable historian. I have come to that general conclusion because:
1.During the appeal hearing I explained to Mr Bennetts that there were some areas of his submissions which differed to the materials before me and invited him to give evidence about the matters that were different. I also told him he would be open to cross-examination. He declined to give evidence in part on the basis that Ms Smith was not there to give evidence and be cross-examined by him.
2.During his EROI, Mr Bennetts maintained a position that he and Ms Smith had been arguing, that he had gotten up off the bed and gone towards her, that Ms Smith then collapsed on the floor and then she had thrown a shoe at him. When asked where the shoe hit him, Mr Bennetts indicated to the police the right top of his forehead. When asked whether it was a shoe or a boot he said that it was his shoe, that it had a higher heel and it went up towards the ankle but it was not a boot.
3.In his second letter of response to the Assessor[10] Mr Bennetts said:
[10] MB 52.

The charge dated 9th April 2017 I was in bed when Miss Smith tried to instigate an argument to which I didn't engage in. Miss Smith chose to throw one of my Steel Capped Work Boots at my head out of frustration that I wasn't responding to her hostile behaviour. After the Steel Capped Boot made contact with my head she immediately ran out of the bedroom down the hallway of the house and down the stairs before I began to chase her. I was naked at the time when I chased her and gave up at the boundary of my property before Miss Smith had slipped and fallen over on the neighbour's verge across the road where they had freshly laid mulch. At no point did I physically touch Miss Smith before, during or after she fell nor was I near her. After Miss Smith slipped in the freshly laid mulch and skidded through the mulch face down I went back inside upstairs to my room to put some clothes on.

4.At the hearing of the appeal Mr Bennetts submitted that he was hit on the left side of his head with a steel capped boot and that had left a scar through his left eyebrow. There was no sign of any injury capable leaving a scar to Mr Bennetts face on the EROI.
5.During the hearing and at my invitation, the amicus played the relevant part of the EROI to enable Mr Bennett to know what specifically were the differences between what he was saying then and what he was saying now. This was to allow Mr Bennetts to comment. He acknowledged that his versions of events at the hearing differed to his version in the EROI both as to where the shoe hit him and whether it was a shoe or a boot but said that he had tried to remove his memory of the events of that evening because they caused him pain. I do not accept that excuse.
6.From the first of his responses to the Assessor he made strong comment about Ms Smith's behaviour denigrating her. He suggested that she was acting fraudulently in maintaining her claim and that he was the victim.
7.He maintained that position through the hearing and went so far as to submit, as touched on above, that Ms Smith often engaged in self-harm by cutting herself and on the occasion of the assault had likely injured herself. This is contrary to Mr Bennetts' plea to causing Ms Smith bodily harm.
8.The photographs of Ms Smith's injuries in the Matter Book are consistent with injuries caused by falling into bushes. Ms Smith denies self-harming and provided other photographs of her arms which do not show evidence of frequent or recent cutting or signs of self-harm.[11]
9.Mr Bennetts maintained at the hearing of the appeal that when he chased Ms Smith out of the house that he could not catch her and was not closer to her than 30 m. That is contrary to the statement of material facts which says that he caught up to her. It is contrary to the facts which he relied on for sentencing that 'once she went in, he has run into her as well and has fallen into her. So yes, he has kicked her but it wasn't a deliberate kick'. During the EROI he told the police that just as Ms Smith went into the bushes he was right next to her and grabbed her and they both went into the bush. Clearly Mr Bennetts did catch up to Ms Smith.
10.At the hearing of the appeal and in his correspondence to the Assessor Mr Bennetts underplayed how after Ms Smith left the house in her car and he followed her by saying that he was only trying to make sure that she was okay. To the contrary, by his plea of guilty, Mr Bennetts accepted that he had repeatedly tried to get Ms Smith to stop her vehicle by flashing his lights, using his vehicle horn and pulling his vehicle in front of her vehicle on the freeway, braking his vehicle in front of her and had then followed her to the Mirrabooka Police Station where he stood outside the driver's door of the vehicle. She was then too frightened to exit the vehicle.
11.Finally, the material before me includes text messages Mr Bennetts put before the Assessor which he alleged were between himself and Ms Smith with respect to the offence relating to the breach of bail conditions. The material also contains the full text message exchange which Ms Smith later supplied to the Assessor which showed that Mr Bennetts had deleted some of the messages between them. His excuse to the court was that he only took out what he considered to be irrelevant but on my assessment of the messages what was deleted put an entirely different complexion on the text message exchange.
[11] MB 119, 124 - 127.

Mr Bennetts showed himself to be fundamentally without credit and unreliable so I will only accept his version of events if it is either consistent with the version of events which he pleaded guilty to, with Ms Smith's version of events or with any independent documents.
Ms Smith accepts that she threw a shoe at Mr Bennetts. This was included in the facts in the statement of material facts. Throwing a shoe at someone is an action that can fall within the definition of assault.
The question then becomes was that assault unlawful? It would be unlawful unless it was authorised, justified or excused at law. Two potential justifications or excuses could be self-defence and provocation.
I do not consider that Ms Smith could have been acting in self‑defence when she threw the shoe. Ms Smith says that after he assaulted her by coming toward her and pushing her head into her knees Mr Bennetts then returned to the bed. She says that she threw the shoe because she was angry and not that she threw it in order to stop Mr Bennetts from assaulting her further.
Accordingly, both the subjective element of the defence of self‑defence, that she believed that her act was necessary to stop further violence and an objective element, that she acted in reasonable response to the danger she then faced would not be made out.
The same cannot be said for provocation. In order to make out a finding of provocation I would need to be satisfied on the balance of probabilities[12] that:
(a)there was a wrongful act or insult which gave provocation to Ms Smith for her assault on Mr Bennetts. In this case a wrongful act or insult can be found in Mr Bennetts while angry coming towards her and while she was crouched against the wardrobe assaulting her by pushing her head into her knees before simply getting back onto the bed;
(b)the provocation could or might have caused an ordinary person to lose self-control and act as Ms Smith did. The wrongful act or insult I have described is capable of causing an ordinary person to lose self-control;
(c)that Ms Smith was in fact deprived by the provocation of the power of self-control. I am prepared to infer that she was in fact deprived of the power of self-control from her description that she got angry and acted immediately. Clearly that act was not a controlled act given that she had just been assaulted; and
(d)the force use by Ms Smith was not disproportionate to the provocation. Throwing a shoe at Mr Bennetts following him pushing her head into her knees was not an act that was disproportionate to the provocation.
[12] McDavitt v McDavitt [30] ‑ [31].
In my view, I am not satisfied that Ms Smith committed the offence of assault on Mr Bennetts.
Further, what is clear is that on all versions of events Ms Smith then immediately ran out of the bedroom, down the stairs and out of the house. Mr Bennetts chased after her naked. He chased her out of the house across their yard, onto the road and until she fell into the bushes.
I can be satisfied by his plea that in doing so he was not acting lawfully. I am satisfied of that for two reasons. First, because he started the assault by going towards her while she was crouched down in front of the wardrobe and pushed Ms Smith's head into her knees and second, by his plea of guilty he has discounted any reliance on any defence.
Turning now to the contention that Ms Smith committed an offence by aiding Mr Bennetts to breach his bail conditions by being in the car with him when he was arrested.
I am far from certain that Ms Smith's application sought compensation with respect to Mr Bennetts' conviction for breaching his bail conditions. She made no mention to that conviction in her application but I acknowledge that in her statement supporting the application she made a passing reference to facts that might amount to an assertion that Mr Bennetts had breached bail when he came straight home after he had been told not to go near her.[13]
[13] MB 20.
Later, she responded to allegations Mr Bennetts made in his correspondence with the Assessor responding to the Assessor's enquiry about both convictions.
I will, however, proceed on the basis that the Assessor correctly decided that Ms Smith's application was 'an approximation of these two incidents'[14] and was correct to treat them as one of two related offences within s 33(1)(b) CICA.
[14] MB 3: Reasons.
Section 51 of the Bail Act 1982 (WA) provides that:
(2a)An accused
(a) whose bail undertaking includes any condition imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D of Schedule 1; and
(b) who fails to comply with the condition,
commits an offence.
…
(6)A person who is convicted of an offence against subsection (1), (2) or (2a) is liable to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.
Section 7 of the Criminal Code - the aiding provisions - apply to statutory offences in Western Australia not contained within the Code: Wilson v Dobra (1955) 57 WALR 95; West v Suzuka [1964] WAR 112; Humphry v The Queen [2003] WASCA 53.
There is evidence on which I could be satisfied that Ms Smith was aiding Mr Bennetts in his breach of his bail conditions. In the statement supporting her application she admits to having a general knowledge of the bail conditions from the time he came home, the transcript of sentencing 25 June 2017 makes reference to Mr Bennetts and Ms Smith having sought to have the very bail condition amended to enable them to discuss their jointly owned business and Ms Smith was in the car when police arrested her and did not then make any allegation that was not consensual.
From that I can conclude that Ms Smith was also committing an offence at the time Mr Bennetts was committing the offence of breach of bail conditions.
That offence does not, however, have any temporal connection with the AAOBH discussed above. It occurred more than two months after the AAOBH. For that reason, I cannot be satisfied that s 39 CICA would apply so as to prevent an award for the breach of the AAOBH on the basis that Ms Smith was an aider to a breach of bail on another occasions.

Issue 2: Did the behaviour, condition, attitude or disposition of Ms Smith contribute, directly or indirectly, to her injuries?

Mr Bennetts' notice of appeal and his submissions were to the effect that the Assessor failed to consider whether the behaviour of Ms Smith and whether it warranted a refusal of or reduction of the award. This misconceives the law which does not require a consideration of Ms Smith's behaviour generally.
Section 41 provides that:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
The question here is not whether Ms Smith contributed to the offence, but whether she contributed to the injury she suffered arising from the offence: Robertson v Hopwood [2018] WADC 66 [22], [66].
If the court is satisfied that any behaviour, condition, attitude or disposition of Ms Smith contributed, directly or indirectly to her injuries, the court may either refuse to make a compensation award or reduce the amount that would otherwise have been awarded.
If I am satisfied that Ms Smith's behaviour, condition, attitude, or disposition contributed to her injury then I must consider if it is just to refuse to make a compensation award.

Considering Ms Smith's physical injuries first, on Mr Bennetts' own concessions for the purpose of sentencing, Ms Smith was running from him in circumstances which would make him criminally liable for her injuries.
Further, for reasons which I will set out below there is evidence sufficient to establish that Ms Smith suffered a psychological injury as a consequence of or in part as a consequence of Mr Bennett offending against her.
Mr Bennetts made allegations to the Assessor[15] and submissions to the court to the effect that Ms Smith had suffered depression and would self-harm, been the victim of serious crimes and previously been subject to domestic abuse to the effect that she was psychologically unstable and could not be believed and that her claim was fraudulent. Similar things were said by him to the police in the EROI.
[15] MB 45 - 46, 52 - 110.
In particular Mr Bennetts relied on:
1.An alleged admission against interest in the form of an undated text message[16] where Ms Smith is said to admitted to sudden bouts of anger. On a proper reading of that text message Ms Smith is putting the position that her anger (about what is unexplained) was justified because he would not listen to her.
2.Text messages threating self-harm.[17] Those text message do appear to threaten self-harm but the dates of the messages and the context in which they were sent are completely unexplained except by Ms Smith who says that she sent them at a time when she was traumatised by Mr Bennetts' and his family's actions.
3.Posts Ms Smith had made to social media after they had separated which made allegations against Mr Bennetts and his behaviour towards her. Ms Smith admits to making the posts which are regrettable but that behaviour cannot be behaviour which contributed to her injury.
[16] MB 64.
[17] MB 65 - 69.
Some of those material speak to a volatile relationship between Mr Bennetts and Ms Smith and between Ms Smith and other members of his family. Ms Smith may well have experienced events in the past that have contributed to her suffering, overall, using the words of the CICA, mental or nervous shock. I will deal with this in more detail below but suffice to say that none of that material leads me to the conclusion to the required level of satisfaction that Ms Smith's behaviour, condition, attitude, or disposition contributed, directly or indirectly, to her injuries.
Further, even if Ms Smith's actions on the night in engaging in an argument with Mr Bennetts and throwing the shoe at him had contributed in a general way to her being chased out of the house by a clearly angry Mr Bennetts, because she was in retreat before she was injured it would not be just to refuse or reduce her an amount of compensation to which she would be entitled.
With respect to the breach of bail, there is no reason to consider that Ms Smith's behaviour, condition, attitude or disposition of Ms Smith contributed, directly or indirectly to any injury which she might be said to have suffered as a result of the either the AAOBH or the breach of bail. Indeed, for reasons I will set out below, I can find no basis to find that there was any particular injury which arose out of that offending.

Issue 3: If either of those matters are proven and taken into account, if it is appropriate to make an award, the quantum of which must be determined?

Having decided that neither of Issues 1 or 2 would prevent an award of compensation, it is unnecessary to decide this issue.

Issue 4: If those matters are not proven and so are not taken into account, is it appropriate to make an award, the quantum of which must be determined?

In my view there is evidence sufficient to satisfy me that Ms Smith suffered injury which included the immediate physical injury associated with falling into the bushes but also which supports a finding that she has an ongoing psychological injury as described in the CICA as mental and nervous shock. That material would justify an award of compensation for both the injury and loss.
Before turning to that material, it is convenient here to outline some of the principles on which compensation awards might be made.
An Assessor may award such compensation that the Assessor is satisfied is just for the injury and for any loss also suffered: s 30(1) CICA. The court has the same power on appeal.
'Loss' includes expenses actually and reasonably incurred that arise directly from or in obtaining a report from a health professional in relation to the injuries Ms Smith suffered or expenses that are likely to be reasonably incurred by Ms Smith for treatment that she is likely to need as a result of her injuries: s 6(1)(2) CICA.
The maximum amount of compensation that may be awarded for injury and loss is $75,000: s 31 CICA.
I repeat what I said in Robertson v Hopwood at [23] the general principles (limited to those relevant to this appeal) relating to compensation awards:
1.The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
2.In fixing the appropriate amount of compensation it is correct to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of injury and loss in the Act and subject also to the jurisdictional limit imposed by the Act: M v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) (Burt J).
3.In assessing the amount of compensation the award relates solely to the injuries suffered by the applicant as a consequence of the commission of the offence. The award is not a punishment of the offender or an expression of sympathy for any victim: B v W (1989) 6 SR (WA) 79, 89; R v Forsythe [1972] 2 NSWLR 951, 953.
4.Other awards of compensation or damages for personal injuries are of limited utility in assessing an appropriate amount: Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet); TAW v NJS.
5.Bodily harm and mental and nervous shock are within the definition of injury attracting compensation: s 12(1) and s 12(3) of the Act.
6.Mental and nervous shock comprehends any impact on the mind or nervous system by the events in question. There must be more than a mere emotional reaction and there must be something of an enduring character such that it can be described, in both the legal sense and common parlance, as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ); S v Neumann (469); M v J and J v J.
7.There are specific heads of loss defined in s 6 [CICA] to include:
…
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim; or
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
…
8.It is not necessary for the offences which are the subject of the application to be the sole cause of any injuries: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann.
As to that last point, it is sufficient if the proved offence materially contributed to any injury.
'Loss' includes expenses actually and reasonably incurred that arise directly from or in obtaining a report from a health professional in relation to the injuries Ms Smith suffered or expenses that are likely to be reasonably incurred by Ms Smith for treatment that she is likely to need as a result of her injuries: s 6(1)(2) CICA.
The maximum amount of compensation that may be awarded for injury and loss is $75,000: s 31 CICA.
Turning now to the material:
Physical injury
1.The statement of material facts for the AAOBH to which Mr Bennetts pleaded guilty states her injuries were cuts to her forehead, right arm and both legs, which bled. In addition there are photographs of her injuries.[18]
[18] MB 191 - 193.
2.Ms Smith does not suggest that she suffered any physical injury arising out of the breach of bail.
3.I will come back to what is an appropriate award with respect to those injuries arising from the AAOBH.
Mental and nervous shock
4.The assault was followed by, on his own admission, a ruse by Mr Bennetts to have Ms Smith return to the house for her dog, and then by what is described in the statement of material facts which, I accept, was a frightening chase through the streets punctured by a number of attempts to have her stop.
5.Ms Smith stated in a letter to the Assessor that she is still struggling with nightmares, a lot of anxieties, depression and post‑traumatic stress disorder (PTSD). She outlined other occasions of domestic violence as she had done so to the police. Her psychologist records that instances of domestic violence were recounted by Ms Smith.
6.The summary of a report of Ms Smith's treating clinical psychologist at The Dash Health Hub dated 18 July 2020 states that Ms Smith attended for treatment on 16 occasions ending in October 2019 presented with symptoms consistent with PTSD, depression and anxiety.[19] This is consistent with Medicare documentation included in the Assessor's papers.
[19] MB 160 - 162
7.Those materials are sufficient to satisfy me that as a consequence of the AAOBH Ms Smith has suffered mental and nervous shock within the meaning of that description in the CICA for reasons including this offending.
8.It would appear that Ms Smith did have events in her earlier life[20] and has made additional allegations of ongoing abuse by Mr Bennetts in her statement in support of her application and in her later response to the Assessor. I cannot untangle what part those events might also have played in causing her injury including mental or nervous shock.
[20] She refers to prior sexual offending against her in her statement supporting her application MB 22.
9.The law is that it is sufficient if the relevant conviction was a cause of the mental or nervous shock and I have found that it was. Accordingly, I intend to make an award of a general nature with respect to both the physical injuries suffered by Ms Smith and the mental or nervous shock. I will outline that below.
10.None of the materials suggest to me that there was any mental or nervous shock which arose out of the events constituting the breach of bail at all and certainly nothing over and above the general background of the parties' relationship.
Loss
11.There is evidence justifying an award for loss which includes an invoice for medical treatment in the sum of $143 for the preparation of a report.[21]
12.The Assessor made an award of $1,458 for future psychological treatment subject to s 48 CICA. Ms Smith claimed in her application for an additional sum of psychological treatment of $19,500 based on $150 per hour. I am prepared to accept that Ms Smith was still suffering some mental distress at the time of her application and now.
13.It is not readily apparent the basis on which the Assessor calculated that sum awarded and compared with the cost of the psychologist bulked billed to Medicare, of $126.50 per session in 2019, but allowing a small increase of $2 per session, that would equate to roughly 11 more sessions. Any further sessions would no doubt have to be privately paid for.
14.Presumably the costs of private psychological services are greater than those bulk billed to Medicare. Taking into account the likely greater cost of private sessions and the likely expertise of the Assessor in this area I am prepared to give the Assessor's assessment of the probable costs some weight and doing the best that I can I will not interfere with that part of the award.
Loss of earnings and damage to personal items
15.Ms Smith's application and supporting statement makes claim for a loss of earnings arising out of her anxiety and depression but not losses following directly on the AAOBH.
16.Ms Smith's taxation papers show an increase in earnings after the offending. I cannot be satisfied on the material provided that Ms Smith suffered a loss of earnings of the type claimed.
17.Similarly, she claimed for losses associated with loss of or damage to personal items but there is insufficient material from which I could conclude those items fall within the definition of personal items or that they were damaged during the course of this offending.
[21] MB 196.
As mentioned above I consider that it is appropriate to make a general award for the injury both physical and mental or nervous shock suffered by Ms Smith. I was referred by the amicus to a number of decisions of this court relating to AAOBH or physical assaults giving rise to physical injury and mental or nervous shock which might be considered to be roughly analogous.[22] From what I can see the Assessor's award of $12,143 which sum is inclusive of the sum of $143 for the medical loss falls squarely within a general range of awards for similar conduct.
[22] Part 4.5, pars 72 - 76, Amicus Submissions dated 17 March 2022.
Noting that I am approaching this matter on the basis that it encompasses both of the convictions but no part of the award relates to any separate physical or mental or nervous shock injury associated with the conviction for breach of bail conditions, I see no reason to deviate from the award made by the Assessor which seems appropriate in all of the circumstances.
Finally, I can see no reason why the Assessor's decision under s 45(1)(b) CICA was not appropriate in all of the circumstances.
Accordingly, albeit for different reasons, I confirm the decision of the Assessor to award the respondent $13,601 in compensation with:
The respondent to be paid the sum of $12,143;
Up to $1,458 be paid subject to the provisions of s 48 CICA for counselling.
I also confirm the Assessor's decision that, pursuant to s 45(1)(b) CICA, only $10,000 may be the subject of proceedings under pt 6 CICA.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Court Officer
8 APRIL 2022