Bullen v Pindan

[2023] WADC 154

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BULLEN -v- PINDAN [2023] WADC 154

CORAM:   SHEPHERD DCJ

HEARD:   7 DECEMBER 2022, 30 JANUARY & 15 SEPTEMBER 2023 AND WRITTEN SUBMISSIONS DATED 27 NOVEMBER 2022, 26 JANUARY, 27 JUNE 2023 AND 12 DECEMBER 2023 (APPELLANT), 1 DECEMBER 2022 & 12 JULY 2023 (AMICUS)

DELIVERED          :   29 FEBRUARY 2024

FILE NO/S:   APP 37 of 2022

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   VERNON BULLEN

Appellant

AND

THURSDAY PINDAN

Respondent

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   ASSESSOR DEMPSEY & ASSESSOR HAFFORD

File Number            :   CI 2005-000388 (dj) & CIC 694/2022

Catchwords:

Criminal injury compensation - Appeal - Significant delay - Whether leave for an extension of time to bring application ought to be granted - Exceptional circumstances - Whether the appellant was the victim of a 'proved offence' or of an 'alleged offence: charge not determined' or an 'alleged offence: no person charged' - Matter remitted to assessor to order further reports and to assess quantum for damages

Legislation:

Criminal Code, s 23, s 266
Criminal Injuries Compensation Act 2003 (WA), s 3, s 9, s 12, s 16, s 17, s 55, s 56
Criminal Procedure Act 2004 (WA), s 87
Justices Act 1902 (WA), s 105, s 106, s 107

Result:

Appeal allowed
Matter remitted to the assessor of criminal injuries compensation

Representation:

Counsel:

Appellant	:	Mr D B Gibbard
Respondent	:	No appearance
Amicus Curiae	:	Mr C L Arnold appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Aboriginal Family Legal Services (subsequently Legal Aid)
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

BAS v The Estate of NAS (dec) [2000] WASCA 270

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Callaghan v The Queen (1952) 87 CLR 115

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

CY [2014] WADC 41

Foote v Draper [2003] WADC 17

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Gullelo v Halloran [2008] WADC 145

Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137

Hawke v The State of Western Australia [2017] WASCA 40

Hinchcliffe v Hinchcliffe [2010] WADC 78

Kaporonovski v The Queen (1973) 133 CLR 209

Martin v Martin [2015] WADC 138

MES v KG (1995) 12 SR (WA) 330

Michael v Musk [2004] WASCA 203

Mouritz v the State of Western Australia [2006] WASCA 165

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 CLR 445

R v Taiters (1996) 87 A Crim R 507

Re ATS [2017] WADC 92

Re HCM [2018] WADC 20

Re Jackamarra [2014] WADC 9

Re McHenry [2014] WADC 92

Re Tilbury [2010] WADC 46

Robinson [2017] WADC 18

Simonsen v Legge [2010] WASCA 238

Stanik v The Queen [2001] WASCA 333

Tovey v Ferre [1981] WAR 21

Underwood v Underwood [2018] WADC 13

VMH by her next friend The Public Trustee v JAB [2014] WADC 47

X v McAllister [2021] WASCA 3

SHEPHERD DCJ:

Introduction

1. On Thursday 5 November 1992 3‑year‑old Vernon Bullen went to sleep on a mattress next to his mother outside a house at La Grange Community on the outskirts of Broome.

2. He did not wake up the next morning.

3. Unable to rouse her son, and realising that there was something very wrong, the following day Vernon's mother took Vernon to the local sister at the medical clinic.  From there he was taken to Broome by ambulance and was then flown by the Royal Flying Doctor Service to Princess Margaret Hospital (PMH) in Perth.

4. Upon admission it was plain that Vernon had sustained a significant head injury.  His brain was herniating out through a wound to his head with the dura torn.

5. Vernon was diagnosed with a depressed comminuted fracture of his left parietal skull with underlying brain contusion and mass effect.[1]

   [1] PMH Discharge Summary dated 3 December 1992; Further materials filed by the Appellant 24 November 2022; item 15.

6. He underwent an emergency left parietal craniotomy, the first of a number of operations to his head.

7. The initial emergency operation on Vernon's skull included the debriding of a clot that had resulted from his severely contused brain.  A subdural frontal catheter was inserted, and he was ventilated.  It was noted that Vernon had a dense right hemiplegia.[2]

   [2] PMH Discharge Summary dated 3 December 1992; Further materials filed by the Appellant 24 November 2022; item 15.

8. Following his initial emergency surgery, and whilst still in hospital, Vernon's condition deteriorated and further investigations revealed the existence of a bulging craniotomy defect.

9. A subsequent CT showed that the herniation of Vernon's brain through the calvarial defect had increased markedly.

10. On 21 December 1992 Vernon underwent a cranioplasty with an autologous bone flap.  Following that operation, Vernon became febrile and developed a haematoma under the flap.

11. Vernon was eventually discharged from hospital on 6 January 1993.  He was noted to be at risk of seizures due to the presence of significant contusions and was non‑verbal.

12. Upon discharge Vernon's dense right hemiplegia had resolved to a mild residual weakness.  He continued to be aphasic and incontinent.[3]

    [3] PMH Discharge Summary dated 3 December 1992; Further materials filed by the Appellant 24 November 2022; item 15.

13. Five years later, at the age of 8, Vernon underwent a further cranioplasty due to a defect in his cranial vault.  Medical records noted that Vernon had presented with suspected transient right hemiplegia secondary to epilepsy.[4]

    [4] PMH letter dated 24 August 2004; Further materials filed by the Appellant 24 November 2022; item 15.

14. It is not in dispute that Vernon Bullen sustained his significant head injuries when he lay asleep on the mattress during the evening of 5 November or the early hours of 6 November 1992.  Whilst asleep on the mattress young Vernon was oblivious to a domestic altercation that was taking place between Thursday Pindan and his de facto wife Marnie Butt.  In the course of that altercation Mr Pindan picked up a tree branch, or other sizeable piece of wood, and wielded in such a manner as to strike Ms Butt thereby wounding her.

15. Precisely how Mr Pindan wielded the tree branch of piece of wood at Ms Butt or used it to strike her is not entirely clear; whether it was thrown at Ms Butt or used to strike her.  What is clear is that having struck Ms Butt and wounded her, either the entire branch, or a piece of the branch that had splintered off upon impact with Ms Butt's body, then travelled to where young Vernon was asleep on the mattress, striking him to the left parietal aspect of his skull.

16. It is not in dispute that that was, factually, the causal mechanism by which Vernon's head injury was sustained.

17. Following the events of 5 November 1992 Mr Pindan was charged with unlawful wounding in respect of Marnie Butt. 

18. Mr Pindan was charged, separately, with unlawfully assaulting Vernon Bullen with intent to do grievous bodily harm contrary to s 318(1)(a) of the Criminal Code.

19. The matter went to a preliminary hearing in the Court of Petty Sessions under the (now repealed) Justices Act (1902) WA on 16 February 1993.

20. The preliminary hearing proceeded only in respect of the charge that Mr Pindan unlawfully assaulted Vernon Bullen with the intent to do grievous bodily harm.

21. The Magistrate determined that there was insufficient evidence to commit Mr Pindan for trial on Indictment on that charge.  In so determining the Magistrate concluded that the prosecution would not be able to negative accident.  He noted that the prosecution would also fail to prove the requisite element of intention.  The Magistrate noted that the complaint in respect of the charge would be marked as 'dismissed'.[5]

    [5] ts 14, 16 February 2023.

22. Mr Pindan subsequently pleaded guilty to unlawfully wounding Ms Butt.

23. On 20 April 2005, when Vernon was nearly 16 years of age, an application was brought on his behalf by his mother Tina Bullen for an award of criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (WA) (CICA) (the First Application).

24. The First Application was brought, determined and dismissed on the basis of the charge brought against Mr Pindan where Vernon Bullen was the (legal) victim: the charge of unlawful assault with intent to cause grievous bodily harm. The jurisdictional pathway before the First Assessor for consideration was solely the CICA s 16 pathway, namely whether an 'alleged offence, charge not determined' had been committed in respect of Vernon.[6] 

    [6] Assessor's Papers, First Application 2005, pages 16 - 17.

25. The First Assessor dismissed the First Application relying on the Magistrate's ruling in the preliminary hearing that the prosecution would not be able to negative the defence of accident. Accordingly, the First Assessor concluded that the jurisdictional pathway under CICA s 16 was not established and dismissed the First Application.

26. There was no consideration by the First Assessor of any alternative jurisdictional pathways under CICA s 12 (proved offence) or CICA s 17 (alleged offence; no person charged). These pathways were not argued before the First Assessor.

27. A second application was brought on Vernon's behalf, again by his mother, on 15 March 2022 (the Second Application).[7]  At the time of the Second Application Vernon Bullen (hereinafter Mr Bullen) was well into adulthood. 

    [7] Assessor's Papers, Second Application 2022, pages 3 - 7.

28. The Second Assessor determined that there was no jurisdiction pursuant to CICA s 40(2) to make an award of compensation given that there had been a previous refusal of the First Application.[8]

    [8] Assessor's Papers Second Application 2022, page 29.

29. Accordingly, the Second Application was dismissed.  By letter dated 19 May 2022, the Second Assessor notified Mr Bullen of the refusal of his Second Application.

30. By Notice of Appeal dated 9 June 2022, Mr Bullen appealed to this court against the refusal of his Second Application.

31. Whilst there are a number of issues to be determined in this application, many of which are intertwined, the real issues are two-fold. The first substantive issue is the jurisdictional issue, namely whether Mr Bullen has a jurisdictional pathway under the CICA, whether s 16 or another pathway, and the merits of his application.

32. The second substantive issue is that of delay.  Delay is a significant hurdle for Mr Bullen to overcome in the hearing of this appeal and in determining whether leave ought to be granted to apply for an award for criminal injuries compensation out of time.

33. Delay in this matter consists of two aspects.  The first arises from the nuances and complexities arising in this case that stem from a combination of the procedural history to the charges brought against Mr Pindan, the effect of the findings made by a Magistrate at an interlocutory stage under a now repealed statutory framework, the effect of those findings in the context of the statutory framework of the CICA and the way in which the First Application for criminal injuries compensation was framed and determined (together the 'legal circumstances').

34. The second part to delay arises from the personal circumstances of Mr Bullen.  Mr Bullen was, at the time he sustained his significant head injury, and for the years that followed, a disadvantaged Martu child, whose circumstances of upbringing, culture, language, distance, financial means, a lack of access to justice together with the consequences of his serious head injury played a significant role in the history to this matter (together 'the personal circumstances'). 

35. Neither the legal circumstances nor the personal circumstances can be viewed in isolation.  Both go glove in hand, both feed into the other in the chronology and the narrative of this matter and both impacted on the other in the way in which this matter proceeded, and relevantly for the purposes of delay, did not proceed. 

36. For the reasons that follow, I find that Mr Bullen has jurisdiction to bring an application for criminal injuries compensation, and I am satisfied that his application has merit. 

37. Whilst the delay in this case is significant, a substantial injustice would occur to Mr Bullen if the court were not to grant leave to bring an application for criminal injuries compensation out of time, and to appeal out of time.  I grant leave in both respects and I uphold Mr Bullen's appeal.

38. At the request of the Appellant, not opposed by the Amicus Curiae, and for the reasons detailed later in this decision, I remit the matter to the Assessor of criminal injuries to order further medical reports and to then assess quantum of damages.

The issues to be determined and the structure of this decision

1. There are thirteen issues that arise for determination in this appeal. They are as follows.

   1.How does the court treat the Notice of Appeal?  Is this an appeal against the refusal by the Second Assessor or is it an appeal against the refusal by the First Assessor? 

   2.What flows from the determination in point 1 in terms of the requirement for leave to be granted to apply for an award for criminal injuries compensation out of time and leave to appeal out of time?

   3.What is the procedural history to the criminal charges brought by the prosecution against Mr Pindan and how does that procedural history impact on the issue of delay in this case?

   4.What findings of fact can (and should) be made that are relevant to the consideration of whether there is merit to Mr Bullen's application for criminal injuries compensation?

   5.Is this court bound by the findings of fact made by a Magistrate at a preliminary hearing conducted in 1993 under the (now repealed) Justices Act 1902?

   6.What is the effect of a Magistrate's determination not to commit an accused to stand trial on Indictment in the superior court under the Justices Act 1902?

   7.How is that determination to be viewed on an application for an award for criminal injuries compensation under the statutory framework of the CICA? In particular, under the CICA s 16 pathway?

   8.Does Mr Bullen have jurisdiction to apply for an award for criminal injuries compensation under the pathway argued before the First Assessor (and, subsequently, the Second Assessor): the CICA s 16 pathway?

   9.Is there an alternative jurisdictional pathway for criminal injuries compensation open to Mr Bullen under CICA s 12? Does it matter that Mr Bullen was not the named complainant or legal victim of the proved offence? What is meant by 'a proved offence' in CICA s 12?

   10.Is there an alternative jurisdictional pathway for criminal injuries compensation open to Mr Bullen under CICA s 17? What is the scope of CICA s 17: 'alleged offence: no person charged'? On the facts of this case, does the defence of accident mean that no alleged offence has been committed?

   11.Should Mr Bullen be granted leave to apply for an award for criminal injuries compensation out of time? (the first delay question).

   12.Should Mr Bullen be granted leave to appeal out of time? (the second delay question).

   13.Is the court in a position to assess damages on the current state of the medical evidence and, if not, how the matter ought to proceed?

The structure of this decision

1. I approach those issues, not necessarily in the order set out above but in the following way.

2. I structure this decision by determining firstly whether this is an appeal against the decision of the First Assessor or the Second Assessor.

3. I then set out what I have broadly termed 'the legal circumstances' of the case. A proper understanding of the 'legal circumstances' is required in order to assess the nuances and complexities that underpin the issue of delay in this case.

4. That comprises an examination of the procedural history to the charges brought against Mr Pindan and the evidence that was before the Magistrate at the preliminary hearing. It requires an assessment of how to characterise the determination made by the Magistrate at a preliminary hearing under a (now repealed) statutory regime to an application for an award for criminal injuries compensation under the CICA, particularly to the CICA s 16 pathway but also the CICA s 12 pathway.

5. It requires a determination of the findings of fact that arise from the evidence before the Magistrate at the preliminary hearing and how those findings apply to the jurisdictional pathway argued before the First Assessor (CICA s 16) and the alternative jurisdictional pathways potentially open to Mr Bullen (CICA s 12 and s 17).

6. I then turn to assess the second substantive issue of delay. Delay arises in determining whether the court should exercise its discretion to grant the Appellant leave to apply for an award of criminal injuries compensation out of time, and whether to grant the Appellant leave to appeal out of time.

7. I examine the issue of delay having regard to both the legal circumstances of the case and the personal circumstances of Mr Bullen. 

8. Finally I deal with the current state of the medical evidence filed on behalf of Mr Bullen.

The Notice of Appeal

1. The Notice of Appeal dated 9 June 2022 sets out the grounds of appeal as follows:

   1.Injury and loss were sustained because of a proven offence against Ms Butt.  It is pleaded that an offence occurred in the form of an assault against Ms Butt and as a result of that offence the [Appellant] received significant physical and nervous shock injuries.

   2.In relying on Magistrate Roberts [sic] preliminary views, [the First Assessor] erred in her decision on 18 May 2005 to deny a compensation award on the basis that an offence had not been committed against [the Appellant].  In particular, [the Appellant] pleads that:

   (i)The ruling of Magistrate Roberts to dismiss the charge of grievous bodily harm against [the Appellant] does not support a determination that an alleged offence had not occurred;

   (ii)It was accepted that [the Appellant] had suffered an injury and loss due to the actions of [Mr Pindan] whilst committing an offence against Ms Butt;

   (iii)Magistrate Roberts concluded that the defence of accident was likely to succeed, however, said defence was never tested at trial and placed under scrutiny;

   (iv)[The First Assessor] erred in her conclusion that Magistrate Roberts was satisfied beyond the balance of probabilities that an offence had not occurred.  Magistrate Roberts noted in lengthy commentary and explanation that the State may bring an ex‑officio application;

   (v)The election of the Director of Public Prosecutions not to proceed with the charge of grievous bodily harm against [sic] [Mr Pindan] provides no clarity as to the likelihood of the charge succeeding; and

   (vi)Regardless of the grounds under which the charge was dismissed, section 16(1)(b) of the CICA allows for the finding that an alleged offence occurred, regardless of the Magistrates [sic] decision to withdraw the charge.

   3.A failure to consider [the Appellant's] application would cause further hardship to [the Appellant] as his injuries have severely impacted his life, his ability to obtain employment and support himself financially.

The nature of the appeal to the District Court

1. This appeal is made pursuant to CICA s 55. In hearing this appeal, the court must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision.[9]

   [9] CICA s 56(1).

2. An appeal under the CICA is therefore a hearing de novo.[10]  There is no requirement for the Appellant to demonstrate an error on the part of the Assessor to succeed.[11]

   [10] Gullelo v Halloran [2008] WADC 145 [5].

   [11] Gullelo v Halloran [5].

1. The court must determine the appeal solely on the evidence and information that was in the possession of the Assessor, however, the court may receive further evidence and information.[12]  The court should admit further evidence unless there is some reason why it would be unjust to do so.[13]

   [12] CICA s 56(1).

   [13] Re HCM [2018] WADC 20 [13]; Underwood v Underwood [2018] WADC 13 [37] (Underwood); Robinson [2017] WADC 18 [8]; Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].

2. It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part.[14]

   [14] CICA s 56(2)(b).

3. The Appellant carries the burden of proving any injury and loss on the balance of probabilities.

My approach to this appeal

1. The Notice of Appeal refers to the date of the decision against which the Appellant appeals as being 19 May 2022.  It is pleaded as an appeal against the decision of the Second Assessor.  On that basis the appeal was brought within time and no leave of the court is therefore required.

2. However, it was clear during the course of the hearing of the appeal that the substance of the Appellant's argument is an appeal against the refusal of the First Application.[15]

   [15] First Assessor's Papers, First Application 2005.

3. That is logical given that Mr Bullen's Second Application, and its subsequent refusal, was based on the First Assessor's determination, and refusal, of Mr Bullen's First Application.

4. In substance I take Mr Bullen's appeal to be that the First Assessor (and therefore the Second Assessor) erred in finding, in effect, that Mr Bullen had no jurisdiction to bring an application for criminal injuries compensation.  The parties agreed that this is an appropriate approach to this Appeal.

5. Whilst the Notice of Appeal pleads error on the part of the First Assessor, as noted, the Appellant does not need to establish error given that this is an appeal de novo. 

6. What flows from my determination that the Appeal is to be treated as an appeal against the refusal of the First Assessor is that the Appellant requires leave to appeal to this court out of time. 

7. The Appellant also requires leave to apply for an award of criminal injuries compensation out of time.

8. I address both of these issues, together with the principles of law that apply, later in these reasons.

9. There are a number of errors in the substance of the Notice of Appeal. The Notice of Appeal is incorrect in pleading that the proven offence in respect of Marnie Butt was an offence of assault.[16] It was an offence of unlawful wounding.  Nothing turns on this error and I put it to one side.

   [16] Notice of Appeal, ground 1.

10. The Notice of Appeal is incorrect in pleading that the charge originally brought by the prosecution in respect of the Appellant was a charge of grievous bodily harm.[17] It was an offence of unlawful assault with intent to do grievous bodily harm.[18]  The correct identification of the offence is important in determining this appeal. It impacts on the court's assessment of the jurisdictional pathways under the CICA.

    [17] Notice of Appeal, grounds 2(i) and 2(v).

    [18] Contrary to s 318(1) Criminal Code (WA).

11. The Notice of Appeal wrongly characterises the effect of the Magistrate's determination during the preliminary hearing. For the reasons I give later, the Magistrate did not decide to 'withdraw the charge'.  This does have an impact on the findings necessary in this appeal.

12. Whilst the Notice of Appeal pleads only CICA s 16(1)(b) as the jurisdictional pathway to be assessed, in the hearing of the appeal that expanded to pathways under CICA s 16 broadly and pathways under CICA s 12 and s 17.

13. Finally, the Notice of Appeal (and subsequent written and oral submissions filed) pleads that the Appellant suffered injuries including nervous shock[19] and, effectively, financial loss and financial hardship by reason of the impact of the Appellant's injuries on his ability to 'obtain employment and support himself financially'.[20]  I address the current state of the medical evidence to support these injuries and losses later in these reasons.

    [19] Notice of Appeal, ground 1.

    [20] Notice of Appeal, ground 3.

The procedural history and material before the court

1. Before turning to the other issues in this matter it is necessary to set out the procedural history to the hearing of the Appeal.

2. The hearing of this Appeal took place over some months, with the court granting the Appellant leave to obtain and file further evidence in respect of the issues of delay and further evidence in support of proof of the injuries alleged to have been suffered, particularly those injuries consequential upon his head injury. 

3. Both parties were given further time in which to file additional written submissions on the different jurisdictional pathways open to the Appellant.

4. On 27 November 2022 the Appellant filed submissions (the Appellant's Primary Submissions) and material (the Appellant's Primary Material) in support of this appeal, comprising:

   1.Statement of Tina Bullen dated 7 November 1992;

   2.Transcript of court proceedings dated 16 February 1993;

   3.A report from the Women and Children's Health Service dated 24 August 2004;

   4.A discharge report from PMH dated 3 December 1992;

   5.An annotated discharge report from PMH dated 3 December 1992;

   6.Letters from the Rural Paediatric Service concerning the Appellant;

   7.A report from the Royal Flying Doctors and admission notes from PMH dated 11 April 1997 and confirmation from the First Assessor refusing the first application;

   8.Materials from the Director of Public Prosecutions (DPP) file;

   9.Materials from PMH file; and

   10.Materials from Broome Regional Hospital file.

5. On 1 December 2022 the Amicus Curiae filed submissions (the Amicus' Primary Submissions).

6. The matter was before me for oral argument on 7 December 2022 and again on 30 January 2023.  At the conclusion of each of those two hearings, and by reason of deficits in the evidence before the court, I adjourned the hearing of the appeal to allow the Appellant to file supplementary materials.  In particular, further evidence in respect of the issue of delay and further medical evidence in respect of the merits of the Appellant's substantive application. 

7. Following those orders, the Appellant filed the following documents:

   1.On 16 January 2023 an affidavit dated 16 January 2023 (the Appellant's Affidavit).

   2.On 17 January 2023 an affidavit of Mr Daniel Gibbard dated 16 January 2023 and an unsigned statement of Ms Tina Bullen.

   3.On 27 January 2023 a signed copy of Tina Bullen's statement dated 18 January 2023 together with supplementary submissions dated 26 January 2023 (the Appellant's Supplementary Submissions (January)).

   4.On 27 June 2023 the supplementary submissions dated 27 June 2023 (Appellant's Supplementary Submissions (June)).

   5.A statement of injuries dated 27 June 2023 attaching:

   (i)Paediatric registrar assessment letter dated 24 August 2004;

   (ii)PMH Discharge Summary dated 3 December 1992;

   (iii)PMH Diagnostic Imaging Report dated 7 November 1992;

   (iv)PMH Discharge Summary Report dated 6 January 1993;

   (v)Handwritten admission referral dated 11 April 1994;

   (vi)PMH Diagnostic Imaging Report dated 11 April 1997;

   (vii)Paediatrician letter to Broome Regional Aboriginal Medical Serivce (BRAMS) dated 9 September 2003;

   (viii)Photographs of Appellant's scalp;

   (ix)Global Diagnostic CT Scan dated 18 May 2020;

   (x)Letter of Dr Stuart Garrow dated 12 January 1994;

   (xi)Report of Dr Lindsay Adams dated 11 November 1999;

   (xii)Report of Dr Tasmin Hillard dated 10 December 2020;

   (xiii)Services Australia psychological assessment report dated 23 March 2023;

   (xiv)Speech Pathology Department - Outpatient Services sheet dated 20 January 1993;

   (xv)Broome Hospital Discharge Summary dated 19 May 2020; and

   (xvi)Report of Dr Linda Harris dated 3 February 1995.

8. On 12 July 2023 the Amicus Curiae filed supplementary submissions (the Amicus' Supplementary Submissions).

9. The further evidence filed went some way to providing an explanation as to the delay factors.  The further evidence filed also supported some (but not all) of the injuries the Appellant relies upon.  The evidence is, however, still incomplete.

10. The matter was further heard before me on 15 September 2023.

11. Further submissions in respect of the medical evidence and the way in which this matter ought to proceed were received on 12 December 2023 (Appellant).

12. I have also taken into consideration the materials before the Second Assessor which, in addition to the materials before the First Assessor as outlined, also comprised:[21]

    [21] Assessor's Papers, Second Application 2022, pages 3 - 128.

    1.Application dated 15 March 2022;

    2.Undated statement of the Appellant;

    3.Undated statement of the Appellant's solicitor;

    4.Police information report compiled 9 April 2020;

    5.Photographs of the Appellant's head;

    6.Broome Health Campus medical records;

    7.PMH medical records;

    8.Bidyadanga Health Clinic medical records;

    9.BRAMS letter dated 12 January 1994;

    10.Derby Regional Hospital speech pathology records; and

    11.Invoice for psychological counselling.

13. In addition to the materials outlined above, I have also taken into account the materials before the First Assessor comprising:[22]

    1.Application dated 20 April 2005;

    2.Undated statement of Tina Bullen;

    3.Extract from the court transcript dated 16 February 1993;

    4.Further undated statement of Tina Bullen;

    5.Report of Dr Jarrad, Broome Health Service, dated 8 November 2004;

    6.Report of Dr Speldewinde, Women and Children's Health Service, dated 24 August 2004; and

    7.Letter of Mr Geoff Blyth dated 8 April 2005 with attached education file materials.

    [22] Assessor's Papers, First Application 2005, pages 1 - 44.

The legal circumstances

The evidence led in the preliminary hearing

1. At the preliminary hearing the Magistrate heard evidence from Vernon's mother, Tina Bullen[23] and from Marnie Butt.[24]

   [23] Statement of Tina Bullen dated 7 November 1992.

   [24] Statement of Marnie Butt dated 5 November 1992.

2. The evidence‑in‑chief in respect of both women comprised the tendering of their respective witness statements with brief cross‑examination. 

3. In her evidence‑in‑chief Tina Bullen stated that she had gone to bed on a mattress that was located out the front of the house with her son Vernon asleep next to her.  Other children (belonging to Mr Pindan) were also asleep on the mattress. 

4. Ms Bullen stated that she fell asleep and then woke up to Marnie Butt screaming.  Ms Bullen's evidence was that she saw Mr Pindan standing out on the ground in front of the house with a piece of wood in his hand. 

5. Tina Bullen said that Ms Butt was then standing alongside the mattress where Ms Bullen, Vernon and the other children were sleeping.

6. Mr Pindan was shouting at Ms Butt.  He then walked around behind Ms Butt so that he was between the house and the mattress on which Tina Bullen and the children were lying.

7. Ms Bullen's evidence was that Mr Pindan had a piece of wood in his hand.  He then threw the piece of wood at Ms Butt, striking her.  The piece of wood hit Vernon on the left side of the head as he lay sleeping.[25]

   [25] Statement of Tina Bullen dated 7 November 1992.

8. In cross-examination Tina Bullen gave evidence that she was awake when she saw Mr Pindan 'do something' with a piece of wood.

9. She gave evidence that she thought Mr Pindan was angry with Marnie Butt, but not with Vernon.

10. She was asked in cross-examination: 'did you see a piece of wood break and hit your son on the head?' to which she replied: 'no'.[26] 

    [26] ts 5, 16 February 1993.

11. This question contained more than one question and therefore her evidence on this is not clear. 

12. Marnie Butt gave evidence that she and Mr Pindan were arguing and that Mr Pindan chased her with a 'stick.'

13. In cross-examination she agreed that Mr Pindan hit her on the leg with the stick and that the stick broke.

14. She was then asked 'Did you see a piece of that wood go anywhere?' to which she replied 'yes.' 

15. She said that it 'flew' and 'hit that baby'.[27] 

    [27] ts 7, 16 February 1993.

16. She confirmed in cross‑examination that she saw the piece of wood break when it hit her.[28]

    [28] ts 7, 16 February 1993.

17. Ms Butt estimated that Vernon was about 2 m away sleeping on the mattress with his mother and other children at the time Ms Butt was struck with the stick.[29]

    [29] ts 7, 16 February 1993.

18. In re-examination Ms Butt confirmed that Mr Pindan threw a piece of wood at her.

19. She was then asked: 'Did he actually throw a piece of wood at you or did he hit you and did it then fly off?'.  

20. She answered: 'He threw the piece of wood'.  She confirmed that that piece of wood hit her. 

21. She was then asked: 'Did that piece of wood go and hit the baby did it?' She answered 'yes'. 

22. She was then asked by the presiding Magistrate: 'You are sure about that, are you, that the piece of wood went and hit the baby as well, or not?'.  She answered: 'Yes'.[30]

    [30] ts 8, 16 February 1993.

23. The Magistrate had Mr Pindan's record of interview conducted with police following his arrest.  Whilst that interview was not before me, it is clear from the transcript of the preliminary hearing that the Magistrate took into account that Mr Pindan told police that he had struck Ms Butt with a piece of wood and that it broke, hitting the Appellant who was asleep in close proximity.[31]

The conflict in the evidence before the Magistrate

[31] ts 13, 16 February 1993.

1. There was a conflict in the evidence before the Magistrate in two respects.  The first conflict arose on the evidence as to the mechanism by which Mr Pindan struck Marnie Butt with the piece of wood: whether he struck her whilst still holding the wood or whether he threw it at her, thereby striking and wounding her. 

2. The second conflict in the evidence before the Magistrate related to the mechanism by which, having struck Ms Butt and wounded her, the wood then proceeded to strike Mr Bullen to the head.  That is, whether the wood splintered or fractured upon impact with Ms Butt with a piece then striking Mr Bullen to the head, or whether the wood remained intact, struck Ms Butt and then, in one piece, travelled to strike Mr Bullen to the head. 

3. In respect of the first conflict, the evidence given by both Ms Butt and Ms Bullen was that the piece of wood was thrown at Marnie Butt. 

4. The admissions made by Mr Pindan in his interview with police were that he had hit Marnie Butt with the piece of wood.

5. The Magistrate noted that Mr Pindan told police in his interview that the piece of wood he used to hit Ms Butt broke, hitting the Appellant who was asleep in close proximity.[32]

   [32] ts 13, 16 February 1993.

6. The mechanism by which Mr Bullen was struck to the head, and the disparity in the evidence between Ms Bullen and Ms Butt and that of Mr Pindan, was the subject of the limited cross-examination of those prosecution witnesses at the preliminary hearing.

The Magistrates' conclusions

1. At the conclusion of the evidence the Magistrate found that it was clear that Mr Pindan wanted to go to bed with his wife Ms Butt but she did not want to at that stage.

2. The Magistrate found that Mr Pindan had become angry, that found a length of tree branch and chased his wife. 

3. The Magistrate then concluded:[33]

   It would appear he either struck her while he still had the wood in his hand or else got close to her and threw the wood from his hands. In any event it struck his wife Marnie Butt and caused wounding to her … As a consequence of that action a small piece of that wood, approximately 8 inches or so in length, fractured or splintered off and hit a 3-year-old baby, Vernon Bullen, laying asleep with his mother in the vicinity.

   [33] ts 14, 16 February 1993.

4. The Magistrate remarked:[34]

   It would appear as though the wood did fracture though, irrespective of whether he threw it or whether he struck her still with the wood in his hands.

   [34] ts 13, 16 February 1993.

5. Ultimately the Magistrate considered that there was 'some conflict' in the evidence was 'of no moment' for the purposes of the preliminary hearing which he was conducting.

6. The test to be determined by the Magistrate at the preliminary hearing was whether there was sufficient evidence taken at its highest to commit Mr Pindan to stand trial in the superior court on Indictment on the offence charged. 

7. The Magistrate concluded that there was not.

8. The Magistrate concluded:[35]

   It appears to me that he was mainly trying to hit his wife, Marnie Butt, and he did so. A child was asleep in the vicinity, a fracture of wood came off and hit the child in the head.  He had no intention to harm the child.

   (emphasis added)

   [35] ts 13, 16 February 1993.

9. The Magistrate found that there was (insufficient; in fact no evidence) of any intention by Mr Pindan to 'cause the grievous bodily harm to Vernon Bullen'.[36]

   [36] ts 14, 16 February 1993.

10. The Magistrate also remarked that it appeared to him that the defence of accident could be raised (on the evidence) and once raised the prosecution must negative that defence.

11. The Magistrate concluded that the defence of accident could be raised 'successfully' and that the charge was being dismissed on the basis that it was an 'accident'.[37]

    [37] ts 14, 16 February 1993.

12. The Magistrate in his concluding remarks commented that the injury to Vernon Bullen was 'a tragic accident'.

13. The Magistrate then noted that his determination not to commit Mr Pindan for trial did not preclude the prosecution from bringing an ex‑officio indictment.[38]

    [38] ts 14, 16 February 1993

14. The State subsequently decided not to proceed with the charge of assault with intent to cause grievous bodily harm to Mr Bullen.  The State did not subsequently present an ex‑officio indictment in respect of any offending against Mr Bullen.

15. The Magistrate's findings did not resolve the first conflict in the evidence.  In respect of the second conflict in the evidence the totality of the Magistrate's findings appear to support the conclusion that the branch splintered and it was a fragment of the branch the flew off and struck Vernon Bullen to the head.

16. It is necessary to return to the evidence, and to the conflict on the evidence, later in these reasons.

The statutory framework of a preliminary hearing in 1993

1. It is relevant to set out the statutory framework governing the decision that the Magistrate was to make in respect of the charge brought against Mr Pindan for unlawfully assaulting Mr Bullen with intent to do grievous bodily harm.  The provisions of the Justices Act were operative at that time.

2. Section 105 provided:

   AFTER addressing the defendant as required by section one hundred and two, and after taking the statement (if any) of the defendant, the Justice or one of the Justices shall ask the defendant whether he desires to give evidence or to call any witnesses; and if he gives evidence or calls any witnesses, the Justices shall, in the presence of the defendant, take the statement on oath, both examination and cross-examination, of the defendant or of the witnesses so called who know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.

3. Section 106, headed 'Discharge of defendant' provided:

   WHEN all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the Justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the Justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry.

1. Section 107 headed 'Committal of defendant' provided:

   IF, in the opinion of the Justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence, then they shall order him to be committed to take his trial for the offence before some Court of competent jurisdiction, and in the meantime shall, by their warrant, commit him to gaol, to be there safely kept until the sittings of the Court before which he is to be tried, or until he is delivered by due course of law or admitted to bail as hereinafter mentioned.

2. The test to be applied at a preliminary hearing under the provisions of the former Justices Act was considered by the court in Michael v Musk.[39]

   [39] Michael v Musk [2004] WASCA 203 [27].

3. Malcolm CJ held that the evidence sufficient to put an accused on his trial under the former statutory regime was some evidence of, or providing a basis for, an inference of guilt in respect of each element of the offence charged or some other offence.[40]

   [40] Michael v Musk [27].

4. The function of a Magistrate in determining whether or not to commit a person for trial on a charge of an offence was to determine whether the evidence was sufficient to commit the accused to stand trial on the offence or offences charged.  That is, the issue is whether there was a prima facie case on the evidence in respect of the relevant offence.[41]

   [41] Michael v Musk [36] (Malcolm CJ).

5. The function was essentially administrative, however the Magistrate was required to act judicially in arriving at the relevant decision.[42] 

   [42] Michael v Musk [36] (Malcolm CJ).

6. The committal for trial did not have to be for the offence originally charged but could be in respect of any other offence in respect of which there was sufficient evidence to warrant committal.[43] 

   [43] Michael v Musk [25] - [26] (Malcolm CJ).

7. Murray J articulated the test for committal of an accused person at a preliminary hearing was: 'if, on a preliminary hearing, in the opinion of the justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence'.

8. Murray J considered that the relevant question was whether there was a prima facie case upon which a reasonable jury, properly instructed, might find the accused guilty beyond reasonable doubt.  The question was to the sufficiency of the evidence if accepted by a jury to prove guilt of the offence in question to the requisite standard. There was no question of the likelihood of conviction arising.[44]

The relevance of any defence to the determination to commit an accused to stand trial

[44] Michael v Musk [58].

1. In Michael v Musk there was some divergence in opinion as to whether the Magistrate at a committal hearing was able to take into account any evidence before the court that raised a defence or defences.

2. Murray J considered the arguments raised by the Appellant in the matter before him which effectively raised the question of the approach to evidence of self‑defence or provocation within s 245, s 246 and s 248. 

3. Murray J noted that those sections provide 'defences' which if raised by the facts and not negated by the prosecution beyond reasonable doubt will result in the acquittal of the accused person whose conduct might otherwise be found by a jury to constitute an offence. 

4. Murray J considered that they were matters for a jury to determine on the trial of the accused person and they were not matters relevant to the magistrate's inquiry in terms of s 107 of the Justices Act upon the preliminary hearing.[45]  His Honour concluded that at the stage of the preliminary hearing or committal proceeding, evidence about such matters as self‑defence and provocation were irrelevant and ought not to have been admitted.[46] 

   [45] Michael v Musk [60].

   [46] Michael v Musk [61].

5. McLure J (as she then was) considered it followed from s 105 of the Justices Act that a Magistrate was required to consider all evidence properly tendered on the Appellant's behalf in the committal hearing. 

6. Her Honour could see no justification in the language of s 105 and s 107 of the Justices Act or in principle for excluding evidence that was relevant to the defence of the charge, including evidence of matters concerning self‑defence and provocation.[47] 

   [47] Michael v Musk [70].

7. Her Honour disagreed with the view that evidence concerning matters of self‑defence and provocation were irrelevant and ought not to have been admitted by the respondent in the committal proceedings.  The issue was then largely of academic interest because the process of committal for trial following a preliminary hearing was abolished by the Criminal Law (Procedure) Amendment Act 2002 (WA) which came into operation on 27 September 2002.

8. I come back to this aspect later in light of the express provisions of the CICA s 16 and s 17 that relate to criminal responsibility.

The effect of a determination not to commit an accused to stand trial

1. It is necessary to correctly identify what the effect was of the Magistrate's determination not to commit Mr Pindan for trial to the superior court on Indictment.  The Notice of Appeal pleads that it was a decision to 'withdraw the charge'.[48]  The Magistrate remarked that the complaint would be marked as 'dismissed'.[49]

   [48] Notice of Appeal, ground 2(vi).

   [49] ts 14, 16 February 2023.

2. It is plain from the provisions of the Justices Act that the division relating to committal proceedings was directed at the power of a Magistrate in respect of an accused person (to commit to stand trial or to discharge the accused person). The complaint was defined in the Justices Act to include the term 'charge'.  However, the language of the statute was not framed in terms of the complaint that was before the court.

3. The Magistrate had no power to dismiss the charge brought against an accused person, but only a power to discharge the accused pursuant to s 106 of the Justices Act as it then stood.[50]  As to the complaint then under enquiry, it could not be dismissed and could again be proceeded upon if further evidence became available.[51]

   [50] Tovey v Ferre [1981] WAR 21, 22 - 23; Michael v Musk [45].

   [51] Michael v Musk [64].

4. I therefore conclude from the language of the Justices Act and from Michael v Musk that the effect of the Magistrate's decision not to commit Mr Pindan for trial on the offence of unlawful assault with intent to cause grievous bodily harm was not that the charge was dismissed without a finding as to whether the person charged is guilty or not guilty but rather, it was to discharge Mr Pindan from committal to the District Court for trial in respect of that offence. 

5. This is the correct characterisation of that determination for the purposes of the analysis to follow in respect of the CICA s 16 pathway.

No ex-officio indictment brought

1. It is necessary to say something briefly about the fact that the prosecution elected not to bring an ex-officio indictment in respect of any offending against the Appellant.  This was raised by the Appellant in the Notice of Appeal.[52] Reference was made by the First Assessor to the determination by the prosecution that there was insufficient evidence to prefer the charge (of assault with intent to do grievous bodily harm), however that evidence is not before this court.

   [52] Notice of Appeal, grounds 2(iv) and 2(v).

2. There is no evidence as to the internal prosecutorial decisions not to bring any ex-officio charge in respect of Mr Pindan, either the same charge as that which was before the Magistrate in the preliminary hearing or any other charge that may have been preferred on the evidence.

3. That is not surprising because the exercise of prosecutorial discretion to charge a person is an internal decision of the (then) Crown law department, now the DPP.   The decision to prosecute is governed by a number of overarching objectives of a criminal prosecution and the decision is governed by a number of principles including whether there is a prima facie case on the evidence, whether it is in the public interest to prosecute which includes an assessment of the prospects of conviction together with a number of other public interest factors.

4. That no ex-officio charge was brought by the prosecution on the original charge before the Magistrate is not surprising.  Plainly the charge as preferred of unlawful assault of Vernon Bullen with intent to do grievous bodily harm to Mr Bullen was never going to succeed.  There were no prospects, in my view, of the State proving that Mr Pindan had any intention to harm Mr Bullen, let alone do him grievous bodily harm.  That is the way in which the prosecution notice was pleaded.

5. This is a case where the physical actions of an offender had different consequences to different complainants. It is therefore a case where potentially the same physical actions could comprise separate offending in respect of different complainants (Ms Butt and Mr Bullen). 

6. That no ex-officio charge on any alternative charge was brought by the prosecution in respect of the injury or harm to Mr Bullen is not capable of further analysis.  It has no bearing on the determination before this court. 

7. It does not prevent the court from assessing, for the purposes of any alternative pathways open to the Appellant, any alternative charge that may have been open to the prosecution to bring against Mr Pindan in respect of Mr Bullen. I do this in respect of the CICA s 17 pathway below.

Overview - Entitlement to compensation under the CICA

1. Given the way in which the Notice of Appeal is pleaded[53] and given the way in which the First Application was brought, heard and dismissed I commence by an examination of the CICA s 16 pathway. I then turn to an examination of alternative pathways open to the Appellant for an award for criminal injuries compensation.

   [53] Notice of Appeal, grounds 2 and 2(vi).

2. A person who suffers injury as a consequence of the commission of a 'proved offence' or an 'alleged offence' is, in prescribed circumstances, entitled to apply to the Assessor of compensation under the CICA.[54]

   [54] CICA s 11(1), s 12(1), s 13(2), s 14(2), s 15(2), s 16(2) and s 17(2).

3. The provisions setting out the circumstances in which compensation may be claimed apply to a person who suffers injury and loss as a consequence of a proved offence or an alleged offence. 

4. A 'proved offence' is defined to mean a crime, misdemeanour or simple offence of which a person has been convicted.[55] 

   [55] CICA s 3.

5. An 'alleged offence' is defined to mean a crime, misdemeanour or simple offence of which no person has been convicted.[56]

   [56] CICA s 3.

6. The standard of proof is the civil standard, namely the balance of probabilities[57] and the burden of proof is on the Appellant.

   [57] Robinson [10] (Troy DCJ); Martin v Martin [2015] WADC 138 [29] (Derrick DCJ); CY [2014] WADC 41 [25] - [26] (Sleight DCJ); Re Jackamarra [13] (Schoombee DCJ); BAS v The Estate of NAS (dec) [2000] WASCA 270 [11] (per curiam).

7. 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 prove; that is particularly so when criminal conduct is alleged.[58]

   [58] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 CLR 445, 449 - 450 (Mason CJ, Brennan, Deane & Gaudron JJ); Briginshaw v Briginshaw [1938] HCA 34 (Dixon J); (1938) 60 CLR 336, 362; as applied in the criminal injuries compensation context; Re ATS [2017] WADC 92 [29], [141] (Herron DCJ), but note [30] - [31]; Martin v Martin [30] (Derrick DCJ); VMH by her next friend The Public Trustee v JAB [2014] WADC 47 [46] (Wager DCJ); Re Jackamarra [73] - [74] (Schoombee DCJ); MES v KG (1995) 12 SR (WA) 330, 331 - 332 (Clyne C).

Section 16 - Alleged offence: charge not determined

The statutory framework of s 16

1. Section 16 provides, relevantly:

   16.  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;

   (b)the charge is dismissed without a finding as to whether the person charged is guilty or not guilty of it;

   (c)the person is acquitted because the prosecutor does not adduce any evidence on the charge;

   (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.

   …

   (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[.]

   …

   (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 section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.

The interpretation of s 16

1. Section 16(1) read (relevantly) with s 16(2)[59] of the Act sets out the circumstances in which a person who suffers injury as a consequence of the 'commission of the alleged offence' 'may apply' for compensation. Section 16(1) and s 16(2) ground, in effect, the entitlement to apply for compensation under s 16 of the CICA.[60] 

   [59] It is unnecessary to refer to s 16(3) of the CICA which deals with compensation to relatives in a similar vein.

   [60] X v McAllister [2021] WASCA 3 [55] - [89].

2. The jurisdictional pathway under s 16 'alleged offence: charge not determined' is directed at a specific charge (or charges) which have been laid, or otherwise commenced, but not then 'determined'.

3. There is no definition in the Act of what 'determined' means. However, its meaning is derived from a reading of the first sentence in s 16(1):

   This section applies if a person is charged with an alleged offence and …

   together with any one of the circumstances set out in s 16(1)(a) - s 16(1)(e) (to be read conjunctively) together with both the criteria set out in s 16(1)(f) and s 16(1)(g).

4. The jurisdictional entitlement of a person to apply for compensation under s 16(2) arises where that person suffers injury as a consequence of the commission of the alleged offence.

5. A plain reading of s 16(2) is that 'the alleged offence' is defined by, or comprised of, the existence of four separate factors as set out in s 16(1).

6. Firstly, that a person is charged with an alleged offence. The 'alleged offence' to which s 16(1) applies here is therefore the charged offence of unlawful assault with intent to cause grievous bodily harm.

7. Secondly, that one of more of the outcomes (or lack of determination or finalisation of the charge) as set out in any one of the subparagraphs s 16(1)(a) to s 16(1)(e) is present.

8. To that end the entitlement of a person to apply for compensation under s 16 is anchored to the charge (or charges) brought but not determined.

9. Thirdly, and additionally to both of the first and second requirements, is that the person charged is not otherwise 'charged' with the alleged offence or 'tried for it': s 16(1)(f).

10. Fourthly, and again additionally to the first three requirements, is that the person charged with an alleged offence has not been found to be mentally unfit to stand trial for the alleged offence:[61] s 16(1)(g).

    [61] CICA s 15(1).

11. Fifthly, there must be a causal link between the injury (and any loss) suffered and the alleged offence.  The onus is on the Appellant to establish that he has suffered injury as a consequence of the commission of the alleged offence before being entitled to apply for compensation.

12. The causal link between the commission of the alleged offence and the injury suffered by the person also provides a threshold for an assessor's ability to make a compensation award. By s 16(4), an assessor must not make a compensation award in respect of such a compensation application unless, relevantly, the assessor is satisfied that the claimed injury and claimed loss has occurred as a consequence of the 'commission of the alleged offence'.

13. In X v McAllister the Court of Appeal explained that this is a reference to 'the alleged offence which is the subject of the application and to which s 16(1) applies'.[62] Section 16 does not apply to any other offence with which Mr Pindan could have been, but was not, charged (and subject to the court being satisfied to the requisite civil standard that Mr Pindan was criminally responsible for that offence).[63]

    [62] X v McAllister [56].

    [63] Albeit that the statute uses the negative.

14. The meaning of 'the alleged offence' is further refined (and therefore defined) by the express provision of s 16(5), operating together with s 16(4).

15. An alleged offence does not reach the threshold of 'the alleged offence' so as to give rise to the ability of an assessor to make an award for compensation under s 16 unless the Assessor is satisfied that the person who committed the act or omission that constitutes the alleged offence was criminally responsible at the time of the act or omission.

16. Section 16(5) is framed in the negative, such that if an assessor is satisfied that the person who committed the act or made the omission that constituting the alleged offence was at the time of the act of omission not criminally responsible for it, then the alleged offence is taken not to have been committed for the purposes of the threshold in s 16(4).

17. There are exceptions set out in s 16(5) where criminal responsibility is taken to have arisen for the purposes of the definition of 'the alleged offence' even where insanity or specified provisions of the Criminal Investigation (Covert Powers) Act 2012 (WA) arise.[64] 

    [64] Criminal Code s 27; Criminal Investigation (Covert Powers) Act 2012 s 27, s 31 or s 34.

18. Those exceptions do not arise here and I do not need to consider them further.

Analysis

1. For the purposes of s 16(1) Mr Pindan was charged with an alleged offence, namely unlawful assault of Vernon Bullen with intent to do grievous bodily harm.

The application of the criteria in s 16(1)(a) - s 16(1)(e)

1. I turn to consider whether any one of the five criteria in s 16(1)(a) - s 16(1)(e) applies.

2. In respect of s 16(1):

   (a)the charges 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

   …

   (e)for any other reason, the person is not brought to trial on the charge.

   It is not necessary to consider s 16(1)(c) and s 16(1)(d) because they do not apply on the facts.

3. Applying the language of CICA s 16(1)(a), s 16(1)(b) and s 16(1)(e) to the reasoning of the court Michael v Musk is not straightforward because the court was considering language of the (now repealed) Justices Act.

4. However in conducting this analysis I apply the findings set out earlier that in determining not to commit Mr Pindan to stand trial on the offence of unlawful assault with intent to cause grievous bodily harm, the Magistrate had no power to dismiss the complaint.  The effect of the Magistrate's ruling was to discharge Mr Pindan from the charge, regardless of the language in fact used by the Magistrate at the time.  

5. I conclude that the criteria in s 16(1)(a) is not met because the charge of assault with intent cause greatest bodily harm was not withdrawn.

1. Neither was a nolle prosequi entered in respect of that charge and neither was the prosecution of that charge 'discontinued'. 

2. The term 'discontinued' is not defined in the CICA. However, it is the language specifically used by Parliament in s 87 of the Criminal Procedure Act 2004 (WA) (CPA). That is the legislative framework currently in operation which sets out the circumstances, requirements and procedure for discontinuing the prosecution of a charge in the superior court either after committal by the court of summary jurisdiction but before an indictment is lodged (s 87(1) CPA) or at any time after an indictment is lodged (s 87(3) CPA).

3. Section 87(4) sets out the requirements for the notice discontinuing the prosecution of the charge. Section 87(5) CPA sets out the power of the superior court, upon receipt of such a notice, to consent, or in exceptional circumstances, to refuse to consent, to the discontinuance of the prosecution concerned. If a prosecution of a charge is discontinued the court must discharge the accused from the charge (s 87(6) CPA).

4. Neither did the prosecution take steps to discontinue the charge.  The prosecution elected not to lay any ex-officio charge.

5. CICA s 16(1)(a) does not apply.

6. Applying the effect of the Magistrate's determination not to commit Mr Pindan for trial on the charge of assault with intent to cause grievous bodily harm, it cannot be said that the charge was 'dismissed without a finding as to whether the person charged was guilty or not guilty'. CICA s 16(1)(b) does not apply.

7. The criteria under CICA s 16(1)(e) does, however, apply. The discharge of Mr Pindan in respect of the unlawful assault with intent to cause grievous bodily harm following the preliminary hearing on that charge falls within 'for any other reason, the person is not brought to trial on the charge'.

8. That provision is sufficiently wide to capture a decision of a Magistrate to decline to commit Mr Pindan for trial on the charge of assault with intent to cause grievous bodily harm.

9. Mr Pindan was not 'otherwise charged with the alleged offence or tried for it' such that s 16(1)(f) is satisfied and CICA s 15 does not apply.

10. Mr Bullen's claim for injuries (and any loss) suffered are a consequence of the commission of the alleged offence. All other threshold criteria are satisifed, such that, subject to the analysis to follow in respect of s 16(5), Mr Bullen would be entitled under CICA s 16(2), as a person who suffered injury as a consequence of the commission of the alleged offence, to apply for compensation for that injury and any loss also suffered.

The issue of criminal responsibility and the application of the 'brake' s 16(5)

1. Whilst Mr Bullen on this analysis has an entitlement to apply for compensation pursuant to s 16(2) I am not satisfied that the threshold for the making of a compensation award is open to Mr Bullen under s 16(4).

2. That is because of the operation of the 'brake' in s 16(5) which specifically directs as a threshold to the making of a compensation award that an assessor (or here the court) have regard to the question of criminal responsibility for the act or omission constituting the alleged offence.

3. This was in effect the issue highlighted between the judgments of Murray J and McLure J in Michael.  Whilst ultimately the question was rendered academic by the time the court came to determine the decision in Michael, the language of CICA s 16(5) mandates that an assessor consider the very issue of criminal responsibility.

4. An assessor must not make a compensation award in respect of an application under s 16 unless the assessor is satisfied that the claimed injury and any claimed loss has occurred and has occurred as a consequence of the commission of the alleged offence: s 16(4)(a).

5. The alleged offence is deemed not to have been committed for the purposes of s 16(4)(a) if the 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: s 16(5).

6. The threshold for an assessor to make a compensation award under s 16(4)(a) is subject to an assessment of whether, using the language of s 16(5), Mr Pindan was not criminally responsible for the act (or omission) that constituted the alleged offence: here the charged offence (act) of assault with intent to cause grievous bodily harm. 

7. Given the civil standard of proof that applies, the onus is on Mr Bullen to satisfy the Assessor (or court) on the balance of probabilities that Mr Pindan was criminally responsible for that act comprising the alleged offence. 

8. This would require that the Assessor (or court) be satisfied on the balance of probabilities that each and every element of the offence of assault with intent to cause grievous bodily harm is proved.  It would require Mr Bullen to negate on the balance of probabilities any defence to the charged act raised on the evidence.

9. The defence that is clearly raised on the evidence and that applied at the time of the offending is that of accident pursuant to s 23 of the Criminal Code.[65] 

   [65] See the analysis of Buss P in Hawke v The State of Western Australia [2017] WASCA 40; now s 23B of the Criminal Code.

10. I then turn to an assessment of whether Mr Bullen has discharged the onus of proof he bears.

The elements of the alleged offence: charge not determined

1. A charge of assault with intent to do grievous bodily harm preferred against Mr Pindan pursuant to s 318(1) of the Criminal Code provided that:

   Any person who -

   …

   (b)assaults another with intent to do grievous bodily harm to any person;

   …

   is guilty of a crime ...

2. There are four elements to a charge of unlawful assault with intent to do grievous bodily harm under s 318(1) of the Criminal Code. The first is identity, that it was Mr Pindan and not some other person who did the act alleged by the prosecution to comprise the offence.  Secondly, that Mr Pindan committed an assault in respect of Vernon Bullen.  Thirdly, the assault was unlawful and fourthly, that at the time of the unlawful assault Mr Pindan held the intention to do grievous bodily harm.  On the way in which the prosecution was brought, that intention was pleaded as an intention to cause grievous bodily harm to Vernon Bullen.

3. Grievous bodily harm was defined in s 1 of the Criminal Code as meaning any bodily injury of such a nature as to endanger or to be likely to endanger life or to cause or to be likely to cause permanent injury to health. 

4. An assault was defined in s 222 of the Criminal Code in the following terms:

   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 with his consent if the consent is obtained by fraud, 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.

5. An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.[66] 

   [66] Criminal Code s 223.

6. None of those elements are controversial and they do not require any further explanation.

7. There are two aspects to the proof of this offence that do need some analysis on the facts of this case.  On the way in which the prosecution particularised the charge, it was an allegation that Mr Pindan unlawfully assaulted Vernon Bullen and with the intention to cause grievous bodily harm to Mr Bullen (as opposed to, Ms Butt).  That is the charge brought and therefore the charge I need to examine.

8. I take the fifth element first, because it is very straightforward.  On the evidence I accept that Mr Pindan was angry with his wife Marnie Butt and chased her with the tree branch or the stick, his intention in my view was confined to hurting Ms Butt.  There is no evidence from which I can properly infer that Mr Pindan had any intention to harm Vernon Bullen in any way.

9. The evidence falls well short of proving that at the time any assault was committed by Mr Pindan against Mr Bullen, that Mr Pindan held the requisite intention to cause Vernon Bullen grievous bodily harm (in fact any harm). 

10. On that basis alone no jurisdictional pathway arises in respect of s 16.

11. Even those they are my conclusions on the evidence, because of the way in which this matter was argued before the First Assessor, and because of the findings of fact of the Magistrate in the preliminary hearing, it is of some benefit to analyse whether, on the facts before the court, Mr Bullen would be able to negative the defence of accident on the balance of probabilities.

12. Before an award for compensation can be awarded Mr Bullen must satisfy the court on the balance of probabilities that the defence of accident is negative of such that criminal responsibility arises and, for the purposes of s 16(4) applying s 16(5), an 'alleged offence' has been committed.

The defence of accident

The law

1. As at November 1992 when the alleged offence was committed, before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Criminal Code provided the excuse of accident in the following terms:

   Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. 

   Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. 

   Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility. 

2. By s 4 of the Criminal Law Amendment (Homicide) Act, s 23 was repealed and replaced by new s 23, s 23A and s 23B. Section 4 commenced on 1 August 2008.

3. At the material time, s 23 of the Criminal Code provided that a person was not criminally responsible for an act or omission which occurred independently of the exercise of the person's will (unwilled act) or for an event which occurred by accident (accident). 

4. The defence of accident (and unwilled act) were and remain, subject to the provisions of the Criminal Code relating to negligent acts and omissions.[67]

   [67] Chapter XXVII of the Criminal Code.

5. Buss P analysed in detail the elements of the defence of accident in Hawke.[68] That analysis applies to s 23 of the Criminal Code as it then was in 1992 at the time of the commission of the charged offence against Mr Pindan.

   [68] Hawke v The State of Western Australia [2017] WASCA 40.

6. His Honour's analysis was specifically in respect of the (subsequent) amendments to the Criminal Code creating s 23A, which reproduced in substance the first part of the first paragraph of the former s 23 of the Criminal Code in relation to unwilled acts and omissions. 

7. The case law on the first part of the first paragraph of the former s 23 applies to the interpretation and application of s 23A then before the court in Hawke.[69] Section 23B(1) and s 23B(2) reproduce in substance the second part of the first paragraph of the former s 23 of the Criminal Code in relation to accident. The case law on the second part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23B(1) and s 23(B)(2).[70]

   [69] Hawke v The State of Western Australia [113].

   [70] Hawke v The State of Western Australia [114].

8. An event occurs by accident within the meaning of s 23 if it was a consequence which was not, in fact, intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.[71]

   [71] Kaporonovski v The Queen (1973) 133 CLR 209, 231 (Gibbs J); Hawke v The State of Western Australia [126] citing Stanik v The Queen [2001] WASCA 333.

9. An event will not be an accident unless two requirements are met.  The first is that the event, referring to the consequential event or the event consequential upon the 'act or omission', must not be intended nor foreseen by the accused (the subjective element).  The second is that the event must be one which would not reasonably have been foreseen by an ordinary person (the objective element).[72]

   [72] Hawke v The State of Western Australia [126] citing Stanik v The Queen 333 [83].

10. In a criminal trial the State who bears the onus of proof can disprove accident, within s 23B of the Criminal Code, by proving either one of the following beyond reasonable doubt.  Either, that, subjectively, the accused intended or foresaw the event in question as a possible outcome.  Or that, objectively, the relevant event would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative).[73] 

    [73] Hawke v The State of Western Australia [128].

11. Buss P then set out the degrees of likelihood comprehended by the objective and subjective elements of the defence of accident as examined by the court in R v Taiters:[74]

    If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental.  Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental.  On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.  

    The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities.  It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity.  However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section.  In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), ie when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood will be regarded as those discussed in connection with the objective test (338).

The facts for this determination

[74] R v Taiters (1996) 87 A Crim R 507; Hawke v The State of Western Australia [127].

1. It is necessary to return to the evidence before the Magistrate in order to determine if Mr Bullen has discharged the onus of proof he bears to negate the defence of accident.

2. As noted earlier there were two aspects to the evidence before the Magistrate which appeared to be in conflict. 

3. The first arose as to the mechanism by which Mr Pindan inflicted the unlawful wounding on Ms Butt.  The first scenario was whether the piece of wood was held by Mr Pindan and used to physically strike Ms Butt.  The second scenario was whether the piece of wood was thrown by Mr Pindan at Ms Butt thereby striking her and wounding her.

4. The Magistrate did not resolve the first conflict in the evidence, noting that it was of 'no moment' for the purposes of the test before him at the preliminary hearing.

5. The second aspect to the evidence that appeared to conflict arose in respect of the mechanism by which Mr Bullen was hit to the head.  The first scenario was that the piece of wood, having struck Ms Butt, remained in one piece and then travelled to strike the sleeping Mr Bullen. The second scenario is that, upon impact with Ms Butt, a piece of wood splintered off, with a fragment then, flying off to strike Mr Bullen to the head.

6. In respect of the second conflict in the evidence, the Magistrate remarked that 'it would appear as though the wood did fracture though, irrespective of whether he threw it or whether he struck her still with the wood in his hands'.[75]

   [75] ts 13, 16 February 1993.

7. I am mindful that the Magistrate was in a better position than I am to see and hear the evidence led in the preliminary hearing.  I am further mindful that there were other materials before the Magistrate that for one reason or another, are not before me.[76]

   [76] For example, the record of interview between police and Mr Pindan.

8. I am therefore reluctant to depart from the findings of fact made by the Magistrate.

9. To the extent that the Magistrate did not make a definitive finding about the first conflict on the evidence, I am satisfied on the balance of probabilities from the materials before me and the evidence given by Ms Butt and Tina Bullen in the preliminary hearing that Mr Pindan picked up the piece of wood and then threw it at Ms Butt, thereby striking her. 

10. I reach this conclusion based on the uncontested evidence given by both women in the form of their evidence‑in‑chief (comprising their witness statements).   Ms Butt's evidence concluded that Mr Pindan had thrown the piece of wood at her. 

11. I am further satisfied that at the time that Mr Pindan threw the wood at Ms Butt, she was standing in close proximity, a distance of no more than two metres, from where the sleeping Vernon Bullen (and other children and Ms Tina Bullen) lay.

12. I am satisfied on the balance of probabilities that Mr Pindan knew that there were children (and Ms Tina Bullen) in close proximity to where Ms Butt stood when she was struck with the branch.  Three of those children were Mr Pindan's own children.

13. In respect of what had happened next, that is, the mechanism by which Vernon Bullen was struck to the head, (the second conflict in the evidence) Ms Butt concluded that the piece of wood 'flew' and 'hit that baby'. 

14. It is not clear from the way in which the question was asked of Ms Butt (containing two propositions in the one question) whether Ms Butt took the question to mean that the (same) piece of wood used by Mr Pindan then struck Mr Bullen to the head.  Or, alternatively, whether it was a piece of the wood that broke upon impact with Ms Butt, fragmenting, that then flew off and struck the sleeping Mr Bullen to the head.

15. It appears that the Magistrate favoured this second scenario. 

16. In the absence of clear evidence to the contrary, or sufficient evidence to enable me to draw an inference of competing weight to the contrary, I proceed on the basis that this second scenario was the mechanism by which Mr Bullen's head injury (amounting to grievous bodily harm) was sustained.

17. The Magistrate who saw and heard the witnesses concluded that it was likely that the branch fragmented upon impact with Ms Butt with a piece then striking the sleeping Vernon Bullen to the head.

18. Given the conclusion that the Magistrate reached that it was likely that a piece fragmented and then struck Mr Bullen to the head, I take that to be the view of the evidence that, in the absence of evidence to the contrary, the court ought to take.

Findings of fact arising from the evidence

1. For the purposes of the analysis to follow, the facts I find to be proved on the balance of probabilities are as follows:

   (i)Mr Pindan was engaged in an argument with Ms Butt;

   (ii)Mr Pindan was angry with Ms Butt;

   (iii)Mr Pindan picked up a piece of wood (or a branch from a tree);

   (iv)The branch or piece of wood was substantial;

   (v)Mr Pindan threw the piece of wood at Ms Butt;

   (vi)The wood hit Ms Butt, thereby wounding her;

   (vii)That wounding was unlawful;

   (viii)The wood was thrown by Mr Pindan when Ms Butt was standing in close proximity to where Mr Bullen and other children lay sleeping;

   (ix)Having struck Ms Butt, a piece of wood that fractured upon impact with Ms Butt, then travelled to strike Mr Bullen to the left side of his head above his ear;

   (x)As a result of being hit to the head Mr Bullen sustained a significant head injury.

   (xi)That significant head injury amounted to grievous bodily harm as defined in the Criminal Code;

   (xii)At the time Mr Pindan threw the wood at Ms Butt he knew that there were children lying on the mattress in close proximity: three of those children were his own children; and

   (xiii)At the time Mr Pindan threw the wood at Ms Butt he knew or ought to have known that unless reasonable care was taken in the management or handling of the piece of wood, that the life, health, safety of any of those children (including that of Mr Bullen) may be endangered.

1. Section 266 was in force as at 31 May 1991 and as at the time of the offending on 6 November 1992. It remains in force today.

2. The relationship between s 23 and s 266 of the Criminal Code, and the operation of s 266 was examined by the High Court in Callaghan. In terms of the relationship between s 23 and s 266 the High Court held:[91]

   The reference (in s 23) to the express provisions of the Code relating to negligent acts and omissions covers s 266. ... It will be noticed that s 266 is expressed in terms of duty, so to speak in gross. It is not connected with criminal liability in itself. But, because s 23 is qualified by being made subject to the provisions relating to negligent acts and omissions and s 266 is such a provision, it must be taken that the fact that an event causing death occurs independently of the accused's will or by accident can afford no excuse within s 268 if it falls within s 266. For that reason and because of the final part of s 266 by which the person omitting to perform the duty is held to have caused any consequences which result to the life or health of another, breach of the duty of care imposed by the section becomes one of the constituents of the crime of manslaughter. The duty is 'to use reasonable care and take reasonable precautions to avoid such danger.

   [91] Callaghan v The Queen (121) - (124).

3. In respect of the test that properly applies to an offence under s 266 the High Court held:[92]

   What degree of negligence this contemplates is a question that must be considered ... a conviction … is not warranted by a degree of negligence which is no greater than would suffice to make the accused civilly liable in respect of any damage caused. What is required is that the degree of negligence is so serious that the trier of fact regards it as deserving of punishment as a criminal offence.

   [92] Callaghan v The Queen (121) - (124).

4. Applying those principles I turn to the analysis of Mr Pindan's conduct on the evening of 5 November 1992.  Specifically, whether Mr Bullen has satisfied me on the balance of probabilities that Mr Pindan's actions were so grossly negligent and, in all the circumstances, were so serious that they are deserving of punishment as a criminal offence. 

Analysis: The s 17 pathway

1. I am satisfied on the balance of probabilities on the evidence before the Magistrate (and the evidence before this court) that Mr Pindan had in his charge or under his control an object of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered. 

2. Specifically, that the branch or piece of wood picked up by Mr Pindan was, in the absence of the exercise of reasonable care and the exercise of reasonable precautions, a dangerous object. 

3. The inferences rationally and reasonably open on the evidence before the Magistrate is that the piece of wood or branch was not insignificant in size.  It was large enough that a piece of approximately 8 inches splintered off to then strike Mr Bullen to the head.  The piece of wood or branch was thrown at Ms Butt when Mr Pindan was in a fit of rage when Ms Butt would not then go to bed with him.  All of the surrounding circumstances point to Mr Pindan being angry with Ms Butt and wanting to strike her.

4. The presence of children lying on a mattress within very close proximity to Ms Butt when the branch was thrown at her meant that there was a real risk that in the absence of care or precaution in the use or management of that branch or piece of wood, the life, health, safety or health of Mr Bullen (and the other children) may be endangered.

5. The children were vulnerable by reason of their age and, in the case of Mr Bullen, by reason of him being asleep at the time.  Mr Bullen was oblivious to the violent altercation that Mr Pindan then embarked on.  Mr Bullen was in no position to protect himself from Mr Pindan and the branch he wielded.

6. Mr Pindan was therefore under a duty to use reasonable care and to take reasonable precautions in the use or other 'management' of that object.  Reasonable care and the taking of reasonable precautions did not include wielding that branch or object in a way so as to strike Ms Butt.

7. Reasonable care and the taking of reasonable precautions did not include throwing the branch at Ms Butt in anger, in close proximity to where Mr Bullen and the other children then lay. 

8. There was nothing reasonable about the way in which Mr Pindan utilised that branch on the evening of 5 November 1992.

9. I note for the sake of completeness that I would reach the same conclusion on the alternative evidential pathway, namely that the piece was wood was held by Mr Pindan and used to strike Ms Butt in anger in circumstances as described.  On either evidential pathway Mr Pindan was in charge of, or he had under his control, a dangerous object.

10. The combination of all of the factors outlined comprising the size of the branch or piece of wood picked up by Mr Pindan, the force with which it was used to strike Ms Butt (either directly or, as preferred, thrown at her) together with the proximity within which Ms Butt stood to the Appellant and other children who were then lying on a mattress and who were therefore vulnerable lead me to conclude that Mr Pindan was in all the circumstances in control of a dangerous thing. 

11. It was entirely foreseeable that in the absence of care or precaution in its use in the context of the proximity and vulnerability of the children, including Mr Bullen, that the life, safety, or health of Mr Bullen may be endangered.

12. The act of throwing the branch in anger at Ms Butt (or otherwise wielding it in anger to strike Ms Butt) was the antithesis of conduct which would equate to using reasonable care or to taking reasonable precautions to avoid such danger.

Conclusion on the s 17 pathway

1. I am satisfied that Mr Pindan was under a duty under s 266 of the Criminal Code, that he breached that duty and that he is therefore held to have caused any consequences which resulted to the life or health of any person (here Mr Bullen) by reason of his plain omission to perform that duty.  I am satisfied on the balance of probabilities that Mr Pindan's actions were so grossly negligent and, in all the circumstances, were so serious that they are deserving of punishment as a criminal offence. 

2. I conclude that Mr Bullen is able to establish on the balance of probabilities that an offence was committed contrary to s 266 of the Criminal Code. 

3. Mr Pindan was not charged with that alleged offence.  It was open for Mr Pindan to have been charged with that alleged offence. 

4. There is no evidential basis for an assessor (or for this court in the hearing of this appeal) to conclude that Mr Pindan was not criminally responsible for the act or omission that constitutes that alleged offence (under s 266).

5. I am satisfied of that on the basis of the medical evidence currently before the court that Mr Bullen's head injury occurred and occurred as a consequence of the commission of the alleged offence.

6. Applying s 17(5) to s 17(4)(a) the threshold for an assessor (and this court) to make an award for compensation for injury (and claimed loss) has occurred and has occurred as a consequence of the commission of the alleged offence is reached.

7. I therefore conclude that the Appellant is entitled to compensation pursuant to CICA s 17.

Delay

1. Having determined that Mr Bullen's application has merit under either CICA s 12 or s 17, I turn to consider the issue of delay. The issue of delay arises for consideration in determining whether the court ought to exercise its discretion to grant Mr Bullen leave to apply for an award for criminal injuries compensation out of time. Secondly, in determining whether the court ought to grant Mr Bullen leave to appeal out of time.

2. I assess the exercise of the court's discretion to grant leave to apply for an award for criminal injuries compensation out of time first.  Many of the 'delay factors' are relevant to both grants of leave.

3. I group the evidence that is relevant to the reasons for delay into the two headings outlined earlier in these reasons: the legal circumstances of the case and the personal circumstances of the Appellant.

Leave to apply for an award for criminal injuries compensation out of time

The legal principles

1. A compensation application must be made within three years after the date on which the offence to which it relates was committed.[93]

   [93] CICA s 9(1)(a); s 9(1)(b) does not apply.

2. An assessor may allow a compensation application to be made after the three years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks is just to impose.[94]

   [94] CICA s 9(2).

3. By virtue of the nature of an appeal to this court being a hearing de novo I am required to consider again whether the Appellant should be allowed to bring the compensation application out of time.

4. The power to extend the time limit is discretionary, indicated by the word 'may' in the grant of the power in CICA s 9(2). The overriding consideration pursuant to CICA s 9(2) is whether it is 'just' to do so.[95]

   [95] Re McHenry [2014] WADC 92 [27] (Herron DCJ) (McHenry).

5. There are strong policy reasons for imposing limitation periods and ensuring they are complied with.  The time limit set out in CICA is a substantive provision and not merely a procedural time limit imposed by the rules of the court.  As such, it ought not be treated with the indulgence appropriate to merely procedural rules.

6. The onus is on the Appellant to explain to the satisfaction of the court the reasons for the delay in bringing the application.[96]

   [96] Re Jackamarra [2014] WADC 9 [19].

7. The burden on the Appellant is thus 'no triviality' and the Appellant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.[97]

   [97] Hansen v Bolton [2017] WADC 25 [12]; (2017) 91 SR (WA) 137 (Hansen).

8. That a refusal of an application, meaning that an Applicant can never litigate his or her claim is not, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised.   Similarly, that an Applicant for compensation was unaware of his or her right to make a claim for compensation is not, by itself, a sufficient basis upon which to grant an extension of time within which to apply.[98]

   [98] Hansen [13].

9. Factors that may be relevant to the exercise of the court's discretion under CICA s 9(2) include:[99]

   [99] Hansen [14].

   (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.

Analysis

1. For the reasons articulated earlier, I take the Appellant's First Application to be his substantive application for an award for criminal injuries compensation.

2. I therefore assess the issue of delay in the context of the First Application brought on behalf of Mr Bullen for the purposes of assessing whether he ought to be granted leave to apply for an award of compensation out of time.

Personal circumstances

1. The personal circumstances of the Appellant that are relevant to the court's consideration of s 9(2)(a) are that the Appellant was, at the time that the offence (proved or alleged) giving rise to jurisdiction to bring this application was committed, only 3 years of age.

2. The time limit for bringing the application for criminal injuries compensation expired 6 November 1995.  The Appellant was then 6 years of age.

3. The First Application was made on or about 20 April 2005, approximately nine years out of time. This factor is relevant to the exercise of my discretion under CICA s 9(2)(b).

4. However, going back to s 9(2)(a) the First Application, brought on the Appellant's behalf by his mother, occurred when the Appellant was still a minor, not yet 16 years of age.

5. A relevant factor is therefore that by the time the Appellant reached the age of 18, on 4 April 2007, the First Application had been brought on the Appellant's behalf by his mother.

6. In terms of CICA s 9(2)(c), the reasons for the delay, they are rooted in a combination of both the personal circumstances of the Appellant and his mother and the legal complexities of this matter. I rely on the legal complexities as set out in the first part of this decision.

7. In terms of the personal circumstances relevant to the application of s 9(2)(c) I need to take into account both the Appellant's personal circumstances and, given that he was a child of 3 at the time he suffered the head injury that underpins this application, I also, reasonably, need to take into account the Appellant's mother's personal circumstances.

8. I have had regard to the nature of the injuries sustained by the Appellant (significant head injuries) in the context of the burden that those injuries resulted on the Appellant's mother. 

9. As a consequence of the serious head injuries sustained by the Appellant, he required further medical treatment, including further surgery to his head during his childhood.  That further surgery appears to have been necessitated as a direct consequence of his original head injury. 

10. In additional to further surgery, the Appellant required subsequent treatment and intervention during his childhood for other conditions which arose subsequent to his head injury.  The Appellant was noted, for example, upon discharge from the hospital in 1993 to be aphasic.  That is, in simple terms, that he had issues with his ability to communicate.

11. He was also noted in other evidence before the court to have experienced learning difficulties.  The other intervention noted to be required by the Appellant included speech pathology.

12. Additionally, the Appellant suffered at least two (possibly three) seizures following his initial head injury and whilst still a minor.   Those seizures are alleged by the Appellant to comprise a seizure during the original injury, a second seizure in 1997 when the Appellant was 8 years old or thereabouts and a third seizure in 2003 when the Appellant was 14 years old or thereabouts.

13. The Appellant asserts that he suffered a further seizure as an adult in 2021 which I leave to one side for the purposes of the issue of delay.

14. Whether those other medical issues including the seizures were caused by the (proved or alleged) offence is a matter requiring further medical evidence. 

15. The point is that during the Appellant's childhood after his initial discharge from hospital the Appellant's mother was attending to the medical and other intervention required on behalf of her son. 

16. A further relevant factor to the issue of delay, and therefore to the exercise of my discretion to grant leave is that the Appellant's mother's first language is not English.  Neither is the Appellant's.

17. The Appellant's mother was single woman of limited education and limited financial means.  She was isolated by reason of geographical distances between the community in which she raised the Appellant (Bidyadanga) and those communities and towns between which she travelled (Bidyadanga, Jigalong, Newman and Port Hedland).

18. It follows that the Appellant was similarly disadvantaged.

19. Given the nature of the Appellant's physical injury (a significant head injury), I accept that there may well have been concerns about the Appellant's capacity to engage in the legal process following his maturation into adulthood.

20. A further relevant factor underpinning delay is that prior to the death of Mr Pindan there was a fear that retribution might be sought by, or on behalf of, Mr Pindan in the event that an application was brought which would inevitably name him as having offended.[100]  That is, there were cultural reasons at play.

    [100] Assessor's Papers, Second Application 2022, page 11.

21. I am further satisfied that the cultural reasons for not pursuing an application earlier (or prior to Mr Pindan's death) are a relevant factor, but not determinative of the delay issue.

22. I do accept that the Appellant has, by reason of his geographical isolation, his first language not being English and a lack of access to legal advice, to which I will return, experienced some difficulty in sourcing and accessing medical and other evidence for the purposes of this appeal.  One of those difficulties has related to the inability of Mr Bullen to access any record of Mr Pindan's birth and subsequent death.

23. I am satisfied that the Appellant has made appropriate enquiries with Births, Deaths and Marriages for a death certificate for Mr Pindan.  I am satisfied on the material before me there is no formal record documenting Mr Pindan's birth nor his death.  What follows is that on the material before me I accept that the Appellant believes that Mr Pindan is now deceased.

24. Other personal factors arising out of the Appellant's geographical location and isolation relevant to the issue of delay relates to his inability to easily access all medical documents and reports such as they existed in the remote locations where the Appellant had been examined and treated. 

25. By reason of his financial disadvantage the Appellant did not have, and does not have, the means to obtain expert evidence to provide the court with evidence as to Appellant's medical and developmental history,  any deficits that flowed, and which remain (or remained) by reason of his head injury, and how any such deficits impacted on the Appellant's ability to access legal advice once he had turned 18.  

26. Returning to the issue surrounding access to legal advice I do take into account further that the Appellant's mother had limited access to legal advice.  What the materials do show is that the Appellant's mother did access legal assistance from solicitors in Victoria, and those solicitors assisted Ms Bullen to file the First Application. 

27. It is not clear from the evidence before me why the solicitors who assisted the Appellant's mother file the First Application ceased acting.  It is apparent that those solicitors were based in Victoria with the Appellant and his mother living in the remote community of Bidyadanga. 

28. I do accept, however, from the further evidence filed during the hearing of this appeal, that the first regular or easily accessible access to legal advice for the Appellant's mother (and the Appellant) occurred following a visit by the Aboriginal Family Service to Bidyadanga, some years after the Appellant reached adulthood.

Legal circumstances

1. The issue of access to legal advice which is a relevant component to the personal circumstances of the Appellant is also relevant to the second heading of 'legal complexities'.

2. The legal complexities are a relevant factor to determine, together with the personal circumstances, in assessing delay. They are relevant to my assessment of the history of, and background to, the application under CICA s 9(2)(a), as well as to the length of the delay (s 9(2)(b)) and the reasons for the delay (s 9(2)(c)).

3. Those legal complexities are set out in detail earlier in these reasons.  In summary, the First Application was filed on the basis of the charge brought by the State and dismissed by the Magistrate at the preliminary hearing. 

4. There is some complexity to the effect of the determination by the Magistrate not to commit Mr Pindan for trial on the charge where Mr Bullen was the named complainant (and legal victim). 

5. There is some complexity years after the event, including when the First Application was brought on the Appellant's behalf, in determining the factual findings that can and should be made from the materials before the court during the course of the preliminary hearing in 1993. 

6. That complexity is not assisted by the very particular and prescribed function that the Magistrate was then performing under the Justices Act. 

1. In performing that function the Magistrate was not required to make findings of fact other than that the evidence to support the charge then brought against Mr Pindan (unlawful assault with intent to do grievous bodily harm) was insufficient to enable a jury properly instructed to convict Mr Pindan of that offence. 

2. The charge brought by the prosecution of unlawful assault (of the Appellant) with intent to do grievous bodily harm had, in my view, no prospects of success. 

3. There was no prospect on the evidence to conclude that Mr Pindan had any intention to cause any harm to Mr Bullen, let alone grievous bodily harm.  On the facts as they were found by the Magistrate, and as I have found them to be for the purposes of this appeal (and in assessing the merits of any underlying application for an award of criminal injuries compensation), Mr Bullen had no prospect of negating the defence of accident on the charge preferred by the State.

4. That First Application as has been noted, focused only on one jurisdictional pathway that ultimately was not one that had any prospect of succeeding. From the evidence before me that there was no assessment of any jurisdictional pathway open to the Appellant other than under CICA s 16 in the First Application.

5. It appears from the materials before me that no consideration was given to alternative jurisdictional pathways, namely CICA s 12 nor CICA s 17, and the application was refused on the narrow basis upon which, undoubtedly, the application had been brought.

6. That then triggered the refusal by the Second Assessor on the basis that the First Assessor had already refused the compensation application brought by the Appellant.

7. In respect of the reasons for the delay in the Appellant bringing the Second Application I accept that he was told by his mother that there was no merit in the application.  Specifically, that it (the First Application) 'had not worked'.  

8. The reasons for the delay in respect of the Appellant's Second Application are not as strong as the reasons for the delay in respect of the First Application. 

9. However, it seems to boil down to the Appellant being told by his mother who from the evidence before me was the person assisting the Appellant to bring the application that his application had little chance of succeeding.

10. In light of the legal complexities to the application, and in the absence of legal advice to the contrary, it is no surprise that the Appellant and his mother believed that there was in fact no legal merit to his application.  That is what his mother had been told.  I assess all of the Appellant's (and his mother's) personal circumstances when I assess the legal complexities.

11. In assessing CICA s 9(2)(d) the nature of the proposed application to be brought by Mr Bullen has merit. For the reasons outlined earlier whilst the merit of that application lies in alternative pathways (CICA s 12 and s 17) to the pathway argued before the First Assessor (CICA s 16) I am satisfied that there is merit in Mr Bullen's proposed application.

12. In assessing CICA s 9(2)(e), the consequences for Mr Bullen of the refusal of an extension of time would be to extinguish his claim. I am satisfied that this would work a substantial injustice to Mr Bullen in all of the circumstances as I have set them out to be (CICA s 9(2)(g)). I consider that the prospect of his compensation application succeeding under either the CICA s 12 of s 17 pathway is good (CICA s 9(2)(f)).

13. On the material before me that I accept, I am satisfied that there is no impact on Mr Pindan if the court were to give leave to apply for an award for criminal injuries out of time (CICA s 9(2)(e)). He is now deceased.

14. In determining whether to grant leave to the Appellant to bring the application for criminal injuries compensation out of time I recognise that such leave is not to be granted lightly and is not to be based upon matters of triviality.

15. Whilst plainly it was open for an application to be brought on the Appellant's behalf earlier than it was, I am satisfied that, in combination, the delay in the bringing of the Appellant's First Application was not attributable to, nor the result of, inattention, lack of care, nor any other matters upon which the court would have no difficulty in refusing leave to appeal out of time.

16. Taking all of the personal circumstances and the legal complexities into account and addressing the criteria in CICA s 9(2) it is in the interests of justice that the court exercise its discretion to grant leave to Mr Bullen to apply for an award for criminal injuries compensation out of time.

17. I grant Mr Bullen leave to do so.

Leave to appeal out of time

1. I turn then to determine whether the court ought to grant Mr Bullen leave to appeal out of time.

Legal principles

1. The appeal to the District Court from the refusal of the First Assessor (and the Second Assessor) to make a compensation award must be commenced within 21 days after the date of that decision.  The District Court may allow an appeal to be commenced after the 21‑day period and even if the period has expired, if it is just to do so.[101]

   [101] CICA s 55(3) and s 55(4).

2. The District Court has the power to allow an appeal to be commenced out of time[102] if it considers that it is just to do so.[103]

   [102] CICA s 55(3).

   [103] CICA s 55(4).

3. A discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties and may be exercised in favour of an Appellant where strict compliance with the rules will work an injustice upon the Appellant.[104]

   [104] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459; Simonsen v Legge [2010] WASCA 238 [8] (Simonsen).

4. The principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered in Simonsen.

5. Whilst the factors are not necessarily exhaustive in each case, the relevant factors include the length of the delay, the reasons for the delay, the prospects of the applicant succeeding in the appeal and the extent of any prejudice to the Respondent. 

6. They have been noted to be the four 'major' factors with other relevant factors including whether the delay was intentional, contumelious, whether the result of a bonified in the stake or blunder, together with other factors which are not relevant in this case.  I adopt all of those factors, together with all of the factors set out by the Court of Appeal in Simonsen.

7. I adopt the principles governing the exercise of the court's discretion as set out in Underwood[105] and I adopt the reasoning of Gething DCJ in that decision in respect of the application of those principles to appeals under the CICA.[106]

Analysis

[105] Underwood [25] - [35].

[106] Underwood [28].

1. I am satisfied on the evidence filed during the course of the hearing of this appeal that the combination of the personal circumstances and the legal circumstances of the Appellant (and his mother) provide an explanation for the delay in the bringing of this appeal.  Many (but not all) of the factors addressed in respect of the discretion of the court to grant leave to apply for an award of criminal injuries compensation out of time apply to the delay in the bringing of the appeal to this court within time. 

2. Those factors comprise that by the time the Appellant was due to file any appeal against the refusal of the First Assessor, he was still a child of 16 years.  In terms of the appeal period, the Appellant was by the time he was required by statute to file his appeal, still a child and a disadvantaged Aboriginal child.

3. I am mindful in assessing this aspect of the Appellant's case that he did sustain a significant head injury and that there may well be consequential intellectual deficits that flowed and that remain, even into adulthood.

4. The Appellant was, by reason of his age alone, dependent on his mother to bring the appeal on his behalf.  His mother's personal circumstances are therefore also relevant to this second aspect to delay.

5. I am satisfied on the evidence that the Appellant was brought up by a single mother with his (and her) first language not being English.  She was not a woman of financial means.  She was isolated by reason of geography, travelling between remote locations in the Kimberley and Pilbara. 

6. I am satisfied on the evidence before me that the Appellant's mother did not have access to legal advice for many years whilst the Appellant was a child.  When she obtained legal advice, it appeared to be from solicitors in Victoria.  It is not clear why that legal relationship fell away, but it appears to be that the First Application brought by the Appellant's mother on the Appellant's behalf was dismissed and that appeared to be the end of the road at that stage. 

7. There was plainly a lack of understanding by the Appellant's mother, who drove the Appellant's first application of the legal process, particularly, the right of the Appellant to appeal the decision of the First Assessor.  

8. The evidence satisfies me that the Appellant relied upon his mother for information and feedback as to his position generally with respect to criminal injuries compensation.  Essentially, that the First Application 'had not worked'.

9. The legal complexities as I have set them out to be are also relevant to my assessment of whether to grant the Appellant leave to appeal out of time.  The legal issues raised in this appeal are not straightforward.

10. I am satisfied that the Appellant's mother has exercised all reasonable endeavours that could be expected for a single, non‑English speaking, disadvantaged Aboriginal woman in her situation acting on the Appellant's behalf.

11. I am satisfied on the evidence before the court including the Appellant's financial disadvantage, his geographical isolation, his head injury and a lack of practicable access to legal advice that the Appellant was at a significant disadvantage when compared to others in the community.

12. Whilst the delay is significant, and this appeal could have been brought earlier, I am satisfied that on the basis of the combination of all of the factors I have outlined, that justice requires that leave be granted to the Appellant to appeal out of time.

13. To refuse leave would be to deny the Appellant the right to an award for compensation for his significant head injury and any losses that arise from that.

14. I therefore grant the Appellant leave to commence the appeal out of time.

15. Finally, as a matter of formality, I give the Appellant leave to adduce further evidence pursuant to CICA s 56(1).

How the application ought to proceed

1. If the court is satisfied that the Appellant was injured as a result of the commission of an offence, proved or alleged, the next issue is whether the Appellant's claim should be assessed by the court or remitted to the Office of Criminal Injuries Compensation.

2. CICA s 56(2) provides that:

   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;

   …

3. The Appellant has submitted in an email dated 12 December 2023 which I take to be submissions filed on behalf of the Appellant that he has been deprived of an adequate opportunity to prepare his case.

4. Specifically, the Appellant submitted in that email he has not been afforded the ability to obtain further reports addressing issues regarding quantum of damages due to limited Legal Aid funding and an inability to date to seek the costs of such reports, either independently or from the Office of Criminal Injuries Compensation. 

5. The Appellant submits that the matter should be remitted to the Assessor of criminal injuries compensation for the assessment of damages to be undertaken.

6. It is noted that the Appellant has been afforded two adjournments in the hearing of this appeal specifically in order to enable him to obtain and file further evidence in support of this appeal. 

7. That further evidence was required to explain delay, in both the bringing of the application for criminal injuries compensation and in the bringing of this appeal, and also to substantiate (some of) the injuries claimed by the Appellant.

8. The Appellant was therefore specifically afforded two opportunities for the filing of further evidence.  The Appellant, did in fact, file further medical evidence by way of a statement of injuries filed on 27 June 2023.[107]

   [107] Together with further written submissions of the Appellant dated 27 June 2023.

9. Whilst the further medical evidence filed by the Appellant during the course of this appeal satisfies me that the Appellant would be entitled to a compensation award, the state of the evidence at present is still incomplete.

10. It is noted that there is an insufficiency of evidence at present to establish the Appellant's claim for damages for nervous shock.  There is also an absence of evidence addressing the Appellant's claimed loss of earning capacity as a result of the head injury he sustained.  The Appellant's application for past and future medical expenses is also incomplete.

11. What the further medical evidence (and other evidence filed during the course of this appeal) does establish is that the Appellant has a claim for criminal injuries compensation.  The evidence clearly establishes that he sustained a significant head injury.  The full extent of what flows from that injury remains unknown at present.

12. The Appellant submits that the appropriate course of action is to remit the matter to the Assessor to order such further reports as considered necessary. 

13. It is likely that a further medical report will be required which will may require the taking of a medical and developmental history from the Appellant, his mother and a review of the contemporaneous medical notes as they exist in order to substantiate aspects of the Appellant's claim.  The Appellant is currently resident in Tasmania.  It is not known where the Appellant's mother currently is.

14. In light of the fact that there has been no assessment of damages to date, neither by the First nor Second Assessors, together with the difficulties the Appellant has faced in terms of obtaining fulsome medical evidence, I accede to the Appellant's submission that the matter ought to be remitted to the Assessor for criminal injuries compensation. 

15. The logistics involved can properly be determined by an Assessor with such further medical reports being ordered as the Assessor determines are required having regard to these reasons and are best accessed by the Appellant given his interstate residence.

16. The Amicus Curiae concurs that this is an appropriate pathway in all the circumstances of this case.

17. For these reasons I accede to that request and remit the matter to the Assessor for these issues to be finalised.      

Conclusion and orders

1. The court therefore allows the appeal and remits the matter to the Assessor for the ordering of medical reports as the Assessor considers appropriate and damages to be assessed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN

Associate

29 FEBRUARY 2024