CAH -v- MJH [2003] WASC 272

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 272
Case No:	MCS:70/2001	Heard:	21 NOVEMBER 2003
Coram:	MCKECHNIE J	Delivered:	21/11/03
No of pages:	4	Judgment Part:	1 of 1
Result:	Maximum award made
Category:	B
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Parties:	CAH MJH
Catchwords:	Criminal Injuries Compensation No new principles
Legislation:	Criminal Injuries Compensation Act 1970
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CAH -v- MJH [2003] WASC 272 CORAM : MCKECHNIE J HEARD : 21 NOVEMBER 2003 DELIVERED : 21 NOVEMBER 2003 FILE NO/S : MCS 70 of 2001 BETWEEN : CAH

Applicant

AND

MJH

Respondent

Catchwords:

Criminal Injuries Compensation - No new principles

Legislation:

Criminal Injuries Compensation Act 1970

Result:

Maximum award made

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr I D Watson

Respondent : No appearance

Amicus Curiae

: Ms C L Conley appeared for the Chief Executive Officer, Department of Justice

Solicitors:

Applicant : Slee Anderson & Pidgeon

Respondent : No appearance

Amicus Curiae

: State Crown Solicitor

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: This is an application pursuant to the Criminal Injuries Compensation Act 1970. It is unnecessary for me to go into the facts in any detail. When the applicant was a young child, until the age of about 11 years, she was significantly sexually assaulted by her natural father, the respondent. At some stage later, about 10 years later, the applicant made a complaint to the police and ultimately the respondent was charged and stood trial on an indictment which contained a number of counts. On some counts the respondent was acquitted and some counts he was convicted.

2 The applicant accepts that there can be no award of compensation in respect of the counts on which the respondent was acquitted and accepts also that there must be an aggregation of the counts which were committed at the same time and place.

3 The submissions for the chief executive officer have highlighted, in the following table, the aggregation of the various counts on which there was a conviction and which are before me.

Date of Offence	Count on Indictment	Maximum Award	Total Award
1.	1 January 1977 to 31 December 1977	1	$7,500	$7,500
2	1 January 1977 to 31 December 1977	2	$7,500	nil aggregated with counts 1&3
3	1 January 1977 to 31 December 1977	3	$7,500	nil aggregated with counts 1&2
4	1 January 1979 to 31 December 1979	9	$7,500	$7,500
5	1 January 1979 to 31 December 1979	10	$7,500	nil aggregated with counts 9, 11 & 12

(Page 4)

6	1 January 1979 to 31 December 1979	11	$7,500	nil aggregated with counts 9, 10 & 12
7	1 January 1979 to 31 December 1979	12	$7,500	nil aggregated with counts 9, 10 & 11
8	1 January 1982 to 31 December 1982	17	$7,500	$7,500
Total	$22,500

4 I note that a separate application in relation to count 18 is to be heard by the Criminal Injuries Assessor.

5 I have read the affidavit material supplied on behalf of the applicant, including the medical reports. It has long been the case that a Judge making an award of compensation makes an appropriate award for the damage, physical and, in this case, mental trauma, to the applicant. Having examined the material, and without detailing it, I am firmly of the opinion that an award in excess of $22,500 for damages for compensation for injuries and mental trauma should be made.

6 The maximum amount able to be ordered under the Criminal Injuries Compensation Act has been agreed by counsel at $22,500. It is therefore appropriate for me to make an award in that sum.

7 The applicant also seeks an order for costs against the respondent. There is some debate in the authorities about the entitlement to costs but in my view an order for costs is appropriate against the respondent. Of course it hardly needs saying that there would be no costs order either for or against the chief executive officer who has appeared through counsel as amicus curiae.

8 These will be the orders of the Court.

The case of CAH v MJH was heard in the Supreme Court of Western Australia and involved an application under the Criminal Injuries Compensation Act 1970. The applicant, CAH, sought compensation for significant sexual assaults committed by her father, MJH, when she was a child. The court was required to determine the appropriate compensation amount and whether any costs should be awarded against the respondent. The primary legal issue was the aggregation of the various counts of the indictment for which MJH was convicted and the appropriate compensation for the injuries and mental trauma sustained by CAH.

The court considered the submissions and evidence provided, including the medical reports and the submissions from the Chief Executive Officer of the Department of Justice. The court noted that compensation awards should reflect the extent of the damage and trauma suffered by the applicant. Given the severity of the assaults and the resulting trauma, the court found that the maximum award permitted under the Act, which was $22,500, was appropriate. The court also ruled that an order for costs should be made against the respondent, despite some debate in the authorities regarding the entitlement to costs in such cases.

The court's reasoning was based on the principle that compensation should adequately reflect the harm suffered, and the maximum award under the Act was deemed sufficient in this case. The court rejected the argument that the compensation should be aggregated across the various counts of the indictment, instead opting for the maximum allowable award. The court also considered the precedent set by other authorities on the issue of costs in criminal injuries compensation cases, ultimately deciding that an order for costs against the respondent was appropriate.

The final orders of the court were that CAH should be awarded the maximum compensation of $22,500 under the Criminal Injuries Compensation Act 1970, and that MJH should be ordered to pay the costs of the application. No costs were to be awarded against the Chief Executive Officer who appeared as amicus curiae.

CAH v MJH

CAH -v- MJH [2003] WASC 272

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established