Chase v Francis - [2020] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CHASE -v- FRANCIS [2020] WADC 34
CORAM:   GETHING DCJ
HEARD:   19 FEBRUARY 2020
DELIVERED          :   20 MARCH 2020
FILE NO/S:   APP 70 of 2019
BETWEEN:   DENISE MICHELLE CHASE
First Appellant
WAYNE PHILLIP CHASE
Second Appellant
AND
JUDE NATHAN FRANCIS
Respondent

FILE NO/S: APP 71 of 2019
BETWEEN: WAYNE PHILIP CHASE
Appellant
AND
JUDE NATHAN FRANCIS
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION
Coram:   C HOLYOAK-ROBERTS
File Number            :   CIC 2688/2018

Catchwords:

Criminal injuries compensation - Appeal - Whether deceased was committing separate offences when he died - Defence of duress

Legislation:

Criminal Code, s 32

Result:

Appeal allowed
Decision of Assessor reversed

Representation:

APP 70 of 2019

Counsel:

First Appellant	:	Mr A Karstaedt
Second Appellant	:	Mr A Karstaedt
Respondent	:	Mr K Robson
Amicus Curiae	:	Ms E F Archer on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

First Appellant	:	Origen Legal
Second Appellant	:	Origen Legal
Respondent	:	Evangel Legal
Amicus Curiae	:	State Solicitor for Western Australia

APP 71 of 2019

Counsel:

Appellant	:	Mr A Karstaedt
Respondent	:	Mr K Robson
Amicus Curiae	:	Ms E F Archer on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Origen Legal
Respondent	:	Evangel Legal
Amicus Curiae	:	State Solicitor for Western Australia

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

Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
CJJ v WAP [2012] WADC 25
Francis v The State of Western Australia [2019] WASCA 43
Gullelo v Halloran [2008] WADC 145
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hogben v Darcy [2009] WADC 63
Hutchings v Lachlan [2012] WADC 89
KBR v ADM [2018] WADC 120
Marchesano v The State of Western Australia [2017] WASCA 177
McDavitt v McDavitt [2013] WADC 22
PYM v Richardson [2018] WADC 156
Re Puterangi [2017] WADC 168
Re Richardson [2009] WADC 93
Robinson [2017] WADC 18
SW v BB [2010] WADC 86
The State of Western Australia v Francis [2018] WASCSR 106 (Sentencing Remarks)
Underwood v Underwood [2018] WADC 13

GETHING DCJ:

On 23 August 2019 the Chief Assessor of Criminal Injuries Compensation (Assessor) refused separate applications by Mr Wayne Chase and Ms Denise Chase (together, the Appellants) for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (CICA).
The Appellants had applied for compensation for losses suffered by them as a result of the death of their 15‑year‑old son (Deceased).
The Appellants' son died as a consequence of a motor vehicle collision on 28 December 2016. Jude Francis (the Respondent), pursued the Appellants' son at speed, causing him to ride his motorcycle into an intersection without giving way. The Deceased collided with another car, resulting in his death.
The Respondent was convicted in the Supreme Court of one count of manslaughter, one count of failing to stop and render assistance and one count of failing to report an incident forthwith. He was sentenced to a total effective sentence of 7 years' imprisonment.[1] That sentence was upheld on appeal.[2]
[1] The State of Western Australia v Francis [2018] WASCSR 106 (Sentencing Remarks) (Fiannaca J) (Francis).
[2] Francis v The State of Western Australia [2019] WASCA 43 (Buss P, Mitchell & Pritchard JJA) (Francis CA).
The Assessor refused the Appellants' applications for compensation on the basis that, when he died, the Deceased was committing separate offences, namely driving without a license and driving an unlicensed motor vehicle (Decision).
The Appellants have appealed the Decision to this court.
For the reasons which follow, the Assessor's Decision should be reversed.

Factual background

The factual background is set out in the sentencing remarks for the Respondent.[3] No party in the appeal sought to detract from, or add to, the facts found by the sentencing judge.
[3] Francis [7] - [25].
The Respondent owned a Honda motorcycle, a trail bike, which he purchased for $10,000. The motorcycle was stolen from his home on 21 September 2016.
Around 7.20 pm on 28 December 2016 the Respondent was driving a Mercedes Benz C180 sedan in a northerly direction along Beenyup Road in Aubin Grove. At the same time, the Deceased, then aged 15, was riding an unregistered motorcycle, which he owned, in a southerly direction on Beenyup Road towards the Respondent. The Deceased's motorcycle was the same brand and looked the same as the motorcycle stolen from the Respondent. Both vehicles approached the intersection of Beenyup Road and Gaebler Road.
The Respondent noticed the motorcycle being ridden by the Deceased and believed that it was his. He pursued the rider with the intention of stopping him and retrieving the motorcycle.
The Deceased turned in Gaebler Road and the Respondent followed him. The Respondent pursued the Deceased at a distance of 10 m ‑ 15 m at a speed in excess of the 50 km per hour speed limit.
The Deceased became aware that the Respondent was chasing him and he began looking over his shoulder at the Respondent's vehicle. The sentencing judge found that there 'can be no doubt' that the Deceased 'became fearful as he was being chased for no good reason'.[4]
[4] Francis [10].
The Deceased sped up. The sentencing judge found that 'this would simply indicate that he was trying to get away from [the Respondent] because he was frightened'.[5]
[5] Francis [11].
CCTV footage from a house on Gaebler Road captured the Respondent's vehicle pursuing the Deceased at speed. Police analysed the footage and estimated that the motorcycle passed the house at 67 km per hour, while the speed of the Respondent's vehicle at the same point was 75 km per hour.
The Deceased continued along Gaebler road for approximately 1 km before turning left onto Camden Boulevard at a roundabout and then right onto Cotswold Parade, while the Respondent continued to pursue him.
The Deceased continued down Costswold Parade at an excessive speed for approximately 250 m and then into a four way intersection with Giverny Gardens in contravention of a give way sign.
As the Deceased entered the intersection, he collided with a Mitsubishi SUV that was also entering the intersection, and had right of way. The motorcycle crashed with considerable force into the side of the SUV. The police were not able to estimate the speed at which either the motorcycle or the SUV was travelling at the time of impact.
The Deceased was thrown from his motorcycle and suffered critical injuries. When the ambulance arrived he was in critical condition. He was conveyed to Royal Perth Hospital, where he died from his injuries on 29 December 2016.
The sentencing judge went on to described the Respondent's culpability:[6]
[6] Francis [17] - [25].
His death was a tragedy, caused by your senseless and unlawful act of intimidation in pursuing him at speed. You pursued him for a total distance of 1.35 km. At no stage during the pursuit did your car come into contact with Master Chase's motorcycle. However, your car was a heavy, dangerous missile, persistently driven by you in his direction, not far behind, when one has regard to the speed at which you were travelling. Being on a motorcycle, he was vulnerable. You knew that because you, too, rode trail bikes.
There can be no doubt that you struck fear into him, causing him to drive into the intersection without giving way, which resulted in his death. It is on that basis that you are criminally responsible for his death, pursuant to s 272 of the Criminal Code (WA), and it is on that basis that you have pleaded guilty to count 1.
At the time of the crash, you did not have a valid motor driver's licence, having been disqualified from driving for a period of 9 months by the Perth Magistrates Court on Thursday, 9 June 2016, for the offence of driving whilst suspended.
Those are the facts in relation to the offence of unlawful killing.
Count 2
Following the crash, you drove up to the intersection where the crash had occurred and, after confirming that the motorcycle was not yours by checking for distinctive stickers, you continued through the intersection and drove home.
You did not stop to provide assistance to either Master Chase or Mr Richards, the driver of the Mitsubishi, who was trapped in his vehicle. It appears he also suffered some injury, but it is your failure to stop to ensure that Master Chase received assistance, when it was obvious to you that he had suffered serious injury, that is the basis for count 2.
Although it appears that people who lived nearby, or were out cycling, attended the scene very soon after the crash, there is no suggestion that anyone was already attending to Master Chase when you drove off.
In any event, as a driver involved in the incident, you had an obligation under s 54(1) to stop immediately and ensure he received assistance, including medical aid. You failed to do so.
Count 3
Having left the scene, you then made no attempt to report the crash to the police, which you were obliged to do under s 56(1) of the Road Traffic Act. Again, it is not to the point that others may have arrived on the scene soon after, and called police and the ambulance. It was your obligation as a driver involved in the incident, let alone the person who caused the incident, to report the matter to the police. So, your failure to do so is count 3.

Application for compensation

The Appellants applied for compensation pursuant to the CICA. Section 12 empowers the personal representative of a deceased person who died as a consequence of the commission of a proved offence to apply for compensation for loss suffered as a result of the death by a close relative of the deceased person.[7] The section appears to contemplate only one application on behalf of all close relatives, being by the personal representative. It is not clear which (if any) Appellant is the personal representative, but both are close relatives.
[7] CICA s 12(2).
In separate letters dated 17 June 2019 to each Appellant, the Assessor expressed the preliminary view that, at the time the Deceased was injured, he was committing separate offences. The offences identified were:
(a)riding his motorcycle when he was unable to be licensed, in contravention of Road Traffic Act 1974 (WA) s 49 (RTA); and
(b)riding an unlicensed motorcycle in contravention of Road Traffic (Vehicles) Act 2012 (WA) s 4 (RTVA).
The Assessor advised each Appellant that she considered that CICA s 35(3) and s 39(2) required her to refuse their applications.
Section 35(3) precludes an assessor from making an award of compensation for mental and nervous shock by a close relative of a deceased person if the Assessor is satisfied that deceased died when he was 'committing a separate offence'. In full context:
35.Mental and nervous shock, compensation for limited to certain persons
(1)This section applies to and in respect of a compensation application made on or after 23 September 2003.
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
(c)that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed; or
(d)that immediately before the offence was committed the victim was the parent or step‑parent of a person who died as a consequence of the commission of the offence; or
(e)that immediately before the offence was committed the victim -
(i)was a close relative of a person who suffered injury or died as a consequence of the commission of the offence; and
(ii)was living with that person.
(3)Despite subsection (2), if an assessor is satisfied -
(a)that a person died or was injured as a consequence of the commission of an offence; and
(b)that the death occurred or the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of a close relative of the person for mental and nervous shock suffered by the close relative as a result of the death or injury.
Section 39(2) precludes an assessor from making an award of compensation for loss suffered by a close relative of a deceased person if the Assessor is satisfied that the deceased died when he was 'committing a separate offence'. In full context:
39.No award if victim was engaged in criminal conduct
(1)If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
(2)If an assessor is satisfied -
(a)that a person died as a consequence of the commission of an offence; and
(b)that the death occurred when the person was committing a separate offence,
the assessor must not make a compensation award in favour of a close relative of the person for any loss suffered by the close relative as a result of the death.
After receiving submissions on behalf of the Appellants, in letters dated 23 August 2019, the Assessor affirmed her preliminary view and formally refused each Appellant's application. The Assessor did not publish reasons for her Decision.

The appeal to the District Court

Each Appellant filed a separate Appeal Notice in the District Court in identical terms on 12 September 2019. Each was filed within the requisite time limit from the Decision.[8] The sole ground asserted was that in:
[C]onsideration of all the facts and circumstances of the case, s 39(2) and s 35(3) of the Criminal Injuries Compensation Act 2003 cannot be properly enlivened to disentitle the Appellant from compensation under the Criminal Injuries Compensation Act 2003.
[8] CICA s 55(3).
On 20 September 2019 the Respondent filed a Notice of Respondent's Intention in each appeal which he advised that he intended to take part in the appeal and to argue that the Decision be upheld on the grounds relied on by the Assessor.
On 12 November 2019, a registrar made orders consolidating the two appeals.
At a case management hearing on 11 February 2020, the Appellants were given leave to amend their Applications to include, in addition to compensation for loss pursuant to CICA s 12(2), a compensation award for injury/mental and nervous shock suffered pursuant to CICA s 12(1),(2), s 30(3) and s 35(2)(e). It was also ordered that the initial hearing of the appeal be limited to the issue of whether CICA s 35(3), s 39(2) or any other section operates to preclude the Appellants from being awarded compensation under the CICA. Further orders were made to the effect that, if the Appellants were not precluded from being awarded compensation, programming orders be made so that the issue of the amount of compensation can be determined at a later date. At the hearing before me, it was agreed, and I directed, that the issue of whether any award of compensation received by the Appellants be reduced pursuant to CICA s 41 also be deferred until a later hearing.
Both the Appellants and the Respondent have filed submissions, as did the State Solicitor's Office acting on behalf of the Chief Executive Office of the Department of Justice, appearing as amicus curiae.
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] The appeal is a hearing de novo.[10] I am to treat the Appellants' applications as if each came before the court for the first time, save that the Appellants have the right as well as the obligation to open the appeal.[11] The Appellants do not have to demonstrate an error on the part of the Assessor in order to succeed.[12]
[9] CICA s 56(1).
[10] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ); Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
[11] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[12] Underwood [19]; Gullelo [5].
The court must determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[13] Neither the Appellants nor the Respondent have requested the court to consider any further evidence or information.
[13] CICA s 56(1).
It is open to the court to confirm, vary or reverse the Assessor's Decision, either in whole or in part.[14]
Issues arising for determination
[14] CICA s 56(2)(b).
It is not in issue in this appeal that the Deceased died as a consequence of the commission of an offence by the respondent for the purposes of CICA s 35(3)(a) and s 39(2)(a).
It is not in issue in this appeal that, subject to the issue of defences:[15]
(a)whilst driving on Beenyup Road, Gaebler Road, Camden Boulevard and Cotswold Parade in Aubin Grove, the Deceased committed the offence using a vehicle on a road in circumstances where a vehicle license was required for the vehicle and no license had been granted in respect of the vehicle in contravention of RTVA s 4;
(b)whilst driving Beenyup Road, Gaebler Road, Camden Boulevard and Cotswold Parade in Aubin Grove, the Deceased committed the offence of driving a motor vehicle on a road while not authorised to do so in contravention of RTA s 49; and
(c)when the Deceased proceeded into the intersection of Cotswold Parade and Giverny Gardens he failed to give way to the SUV, in contravention of Road Traffic Code 2000 (WA) reg 52 (RTC).
[15] See generally: Amicus Submissions, pars [48] – [57].
The term 'offence' is defined in CICA s 3 to mean 'an alleged offence or a proved offence. 'Proved offence' means a crime, misdemeanour or simple offence of which a person has been convicted. 'Alleged offence' means a crime, misdemeanour or simple offence of which no person has been convicted'. It follows that it is not necessary for the Deceased to have been convicted of an offence for it to be a 'separate offence' for the purposes of CICA s 35 and s 39.
I am satisfied on the balance of probabilities that, subject to the issue of defences, the Deceased was committing the offences set out at [36] (Separate Offences), and that each was a separate offence for purposes of CICA s 35 and s 39.
Based on the submissions filed by each party and the CEO, and the oral submissions made at the hearing of the appeal, four issues arise for determination:
•Was the Deceased acting under duress or as a result of an emergency when he committed the Separate Offences?
•Did the death occur when the Deceased was committing one or more of the Separate Offences for the purposes of CICA s 39(2)?
•Is the outcome of the second issue different for the application of CICA s 35(3)?
•What final orders are appropriate?

Was the Deceased acting under duress or as a result of an emergency when he committed the Separate Offences?

It is well established in this court that CICA s 39(1)(b) will not apply to preclude an award of compensation if the court is satisfied, on the balance of probabilities, that the claimant had a complete defence to the separate offence.[16] The same conclusion must follow for CICA s 35(3)(b) and s 39(2)(b). The effect of the defences of duress or emergency is that a person is not criminally responsible for an act done, or omission made, under duress or in an emergency.[17] So a person acting under duress or in an emergency is not committing an offence for the purposes of CICA s 35(3)(b) and s 39(2)(b).
[16] PYM v Richardson [2018] WADC 156 [73] - [74] (Scott DCJ); McDavitt v McDavitt [2013] WADC 22 [23], [31] (Davis DCJ); Hutchings v Lachlan [2012] WADC 89 [34] - [37] (Commissioner Gething); Re Richardson [2009] WADC 93 [34] (Yeats DCJ); Hogben v Darcy [2009] WADC 63 [25], [31] (Goetze DCJ).
[17] Criminal Code 1913 (WA) s 25, s 32.

The defences of duress and emergency provide a complete defence which is available in respect of any charged offence,[18] so would be available in relation to the contraventions of RTVA s 4, RTA s 49 and RTC reg 52.
[18] Marchesano v The State of Western Australia [2017] WASCA 177 [258] (Mitchell JA).
The defence of duress is in the following terms:[19]
[19] Criminal Code s 32.
32.Duress
(1)A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).
(2)A person does an act or makes an omission under duress if -
(a)the person believes -
(i)a threat has been made; and
(ii)the threat will be carried out unless an offence is committed; and
(iii) doing the act or making the omission is necessary to prevent the threat from being carried out;
and
(b)the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be;
and
(c)there are reasonable grounds for those beliefs.
(3)Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of -
(a)doing an act or making an omission of the kind in fact done or made by the person under duress; or
(b)prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.
There is no suggestion that Criminal Code s 32(3) is applicable.
Five conditions must be satisfied for an act to be done under duress, as summarised by Buss JA in Marchesano v The State of Western Australia:[20]
First, the person must believe that a threat has been made: s 32(2)(a)(i).
Secondly, the person must believe that the threat will be carried out unless an offence is committed: s 32(2)(a)(ii).
Thirdly, the person must believe that doing the act or making the omission is necessary to prevent the threat from being carried out: s 32(2)(a)(iii).
Fourthly, the act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be: s 32(2)(b).
Fifthly, there must be reasonable grounds for the beliefs stated in the first, second, third and fourth conditions: s 32(2)(c).
Each belief referred to in the first, second, third and fourth conditions is the person's subjective belief. So, the person must have a subjective belief: that a threat has been made (the first condition); that the threat will be carried out unless an offence is committed (the second condition); that doing the act or making the omission is necessary to prevent the threat from being carried out (the third condition); and as to the circumstances (the fourth condition).
[20] Marchesano [111] - [115] (Buss JA).
The starting point is that the act or omission said to be done under duress must be an element of the charged offence.[21] The relevant acts or omissions were driving a vehicle that was unlicensed vehicle (RTVA s 4), driving without a licence (RTA s 49) and failing to give way (RTC reg 52).
[21] Marchesano [119].
As to the first element, the subjective belief of the Deceased may be proven by inference from all the circumstances. The sentencing judge found that there could be no doubt that the Deceased became fearful as he was being chased for no good reason, and that he sped up trying to get away from the Respondent because he was frightened.[22] The judge described the Respondent's actions as a 'senseless and unlawful act of intimidation', concluding that there 'can be no doubt that [the Respondent] struck fear into him, causing him to drive into the intersection without giving way, which resulted in his death'.[23] A 'threat', for the purposes of the defence of duress, 'includes an express or implied statement of an intention to kill or injure another, or to cause loss or damage to another or his or her property'.[24] I readily infer that the Deceased in fact believed that an implicit threat has been made to him by the Respondent's actions to injure him in some way.
[22] Francis [10] - [11].
[23] Francis [17] - [18].
[24] Marchesano [122].
Likewise with the second element. I readily infer that the Deceased in fact believed that the threat would be carried out unless he continued to try and escape the pursuit, requiring him to commit the Separate Offences. In my view, the threat was effective from the point in time when the pursuit began (when the Deceased and the Respondent turned into Gaebler Road) until the point of the collision.
As to the third element, I again readily infer that the Deceased in fact believed that doing the acts he did was necessary to prevent the threat from being carried out. This is the only plausible explanation for his actions in all the circumstances. The acts are continuing to ride his unlicensed motorcycle without a licence and the failure to give way. In this context, the word 'necessary' connotes 'that the doing of the act or the making of the omission by the person is essential (and not merely useful, convenient or expedient) to prevent the threat from being carried out'.[25]
[25] Marchesano [123] - [124].
The fourth element, that the act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be, incorporates two concepts. As to this element, in Marchesano, Buss JA observed:
First, the concept of the person's belief as to 'the circumstances'. Secondly, the concept of whether the act or omission is a 'reasonable response' to a threat which satisfies s 32(2)(a). The composite requirement embodied in s 32(2)(b) from these concepts is that the person's act or omission is a 'reasonable response' by the person to the threat in 'the circumstances' as the person believes them to be. The expression 'reasonable response' connotes an objectively reasonable response and the expression 'as the person believes' connotes as the person subjectively believes. By s 32(2)(b), therefore, the person's act or omission must be, objectively, a reasonable response by the person in the circumstances as the person, subjectively, believes them to be ...
The text of s 32(2)(b) does not restrict or confine the concept of a 'reasonable response' to a threat which satisfies s 32(2)(a), apart from stipulating that the act or omission must be a reasonable response 'to the threat in the circumstances as the person believes them to be'. The text of s 32(2)(b), in the context of the text of s 32 as a whole and the apparent policy underpinning s 32, provides no justification for construing the expression 'reasonable response' in s 32(2)(b) narrowly or other than in accordance with its ordinary and natural meaning. In particular, there is no justification for restricting or confining the concept of a 'reasonable response' in s 32(2)(b) to an inquiry about whether the act or omission in response to the threat, in the circumstances as the person believes them to be, was proportionate to the threat. The expression 'reasonable response' in s 32(2)(b) has a broader connotation. It is not synonymous with the expression 'proportionate response'.
The circumstances which the Deceased in fact believed them to be may again be established by inference. Those facts were that he, aged 15, on a motorbike, at night, was being chased at speed, at close distance (10 m ‑ 15 m) for a distance of just over a kilometre, by a person unknown to him in a car, for no good reason. The suddenness with which the pursuit started, the speed and closeness of the Respondent's vehicle, the limited distance over which the pursuit had taken place and the intimidation with which it was done, in my view, left the Deceased with no real opportunity to contemplate alternate responses. As the sentencing judge observed, there 'can be no doubt that [the Respondent] struck fear into him, causing him to drive into the intersection without giving way, which resulted in his death'.[26] In these circumstances, I am readily satisfied that that the Deceased's actions were a reasonable response to the threat as he perceived it at the point in time he drove into the intersection.
[26] Francis [18].
As to the fifth ground, Buss JA observed:[27]
[27] Marchesano [127] - [131] (references omitted).
The determination of the objective 'reasonableness' of the act or omission as a response to the threat, in 'the circumstances' as the person subjectively believes them to be, within s 32(2)(b), involves an evaluation of the nature and quality of the act or omission, in the context of:
(a)the nature and quality of the threat, including its magnitude;
(b)the severity of the consequences if the person does the act or makes the omission;
(c)the existence of any available alternative courses of action, of which the person is subjectively aware, apart from doing the act or making the omission; and
(d)the character of 'the circumstances' as the person subjectively believes them to be.
The evaluation of the objective 'reasonableness' of the act or omission must be undertaken by reference to a hypothetical reasonable person of ordinary firmness of mind and will and of the same age as the person. The notion of a hypothetical reasonable person of ordinary firmness of mind and will is well recognised in this area of the law … The abstract formula of the hypothetical reasonable person of ordinary firmness of mind and will is an appropriate standard by which to measure the objective 'reasonableness' of the act or omission in question for the purposes of s 32(2)(b). It is plain that the notion of reasonableness, on the one hand, and substance abuse impairment, on the other, are contradictory … Otherwise, it is unnecessary, in the present case, to consider whether any of the person's personal characteristics, apart from age, are to be attributed to the hypothetical reasonable person …
It is well accepted that people who are under threat should take reasonable opportunities to render those threats ineffective, by reporting their circumstances to police or other appropriate authorities and seeking their protection, rather than commit serious criminal offences …
…
Ultimately, the determination as to whether the act or the omission of the person was a reasonable response is a value judgment.
One point that I would emphasise from this passage is that the evaluation of the objective 'reasonableness' of the Deceased's acts must be undertaken by reference to a hypothetical reasonable person of the same age as the Deceased.[28]
[28] Marchesano [128]; Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [43] (McLure JA with whom Roberts‑Smith & Buss JJA agreed).
Taking into account the factors set out at [51], and the Deceased's age of 15, the circumstances which I have summarised at [46] and [50] readily provide reasonable grounds for the beliefs of the Deceased as I have found in the first, second, third and fourth conditions.
It follows that I am satisfied on the balance of probabilities that the Deceased was acting under duress from the point in time when the pursuit began (when the Deceased and the Respondent turned into Gaebler Road) until the point of the collision. Accordingly, he is not criminally responsible for driving an unlicensed vehicle, without a licence, during the pursuit. He is also not criminally responsible for going through the give way sign. It follows that he did not commit the offences pursuant to RTVA s 4, RTA s 49 and RTC reg 52.
Given this finding, it is not necessary for me to go on and consider the defence of emergency pursuant to Criminal Code s 25.

Did the death occur when the Deceased was committing one or more of the Separate Offences for the purposes of CICA s 39(2)?

CICA s 39(2) is only activated where 'the death occurred when the person was committing a separate offence'.
Based on my findings as to duress, the Deceased did not commit any offence after the pursuit began. The last point in time he was committing an offence for the purposes of CICA s 39(2) was when he was riding his motorbike on Beenyup Road before the intersection of Gaebler Road. The next issue is whether the death of the Deceased occurred 'when' he was committing these offences.
The proper interpretation of the word 'when' in CICA s 39 was considered by the Court of Appeal in Attorney General for Western Australia v Her Honour Judge Schoombee.[29] In that case the claimant, referred to as SW in the decision, claimed criminal injuries compensation in respect of injuries which she suffered as a consequence of the commission of the offences of indecent assault and sexual penetration without her consent. The perpetrator, referred to in the decision as BB, pleaded guilty to each offence and was sentenced for each in the District Court.
[29] Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29 (Martin CJ, Newnes & Murphy JJA) (Attorney General).
An Assessor of Criminal Injuries Compensation refused SW's application for criminal injuries compensation on the basis that SW was committing a separate offence at the time when she was injured. This was on the basis that, on the materials available to the Assessor, SW and BB had consumed amphetamines together on a number of occasions prior to and after the offence was committed. The Assessor found this to be an alleged offence pursuant to Misuse of Drugs Act 1981 (WA) (MDA).
The materials available to the Assessor included a statement which SW had provided to the police in respect of the sexual offences. In it she says the offences took place at SW's house. BB came over shortly before midday. At some later stage, but before the offences took place, SW and BB consumed amphetamines. The two of them consumed more amphetamine after the offences took place. The next timing point recorded is SW's husband returning at about 3.15 pm.[30]
[30] Attorney General [4] – [11].
On appeal to the District Court, the judge allowed the appeal forming the view that the prohibition in CICA s 39 did not apply to SW's case. This was on the basis that the word 'when' in CICA s 39(1)(b) imposed a requirement that there be some degree of causal connection between the separate offence committed by the claimant and the injury suffered by the claimant as a consequence of the commission of an offence by another. Her Honour did not consider that SW's drug use had caused BB to sexually assault her.[31]
[31] SW v BB [2010] WADC 86 [50], [67] - [71] (Schoombee DCJ).
The decision of the District Court judge quashed on judicial review. This left in place the original Decision of the Assessor refusing criminal injuries compensation in reliance on CICA s 39. Martin CJ, with whom Newnes and Murphy JJA agreed, construed the word 'when' in s 39 as not requiring a causal connection between the offence committed by the claimant for compensation and the offence which gave rise to the claimant's injuries.[32] Rather, the word 'when' requires only a temporal connection. Specifically:[33]
… the question of whether there is a sufficient temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence so as to preclude compensation, will depend upon questions of fact and degree to be evaluated in all the circumstances of the case - in the first instance by the Assessor and secondly on appeal by the District Court.
[32] Attorney General [33] - [54].
[33] Attorney General [54].
The Chief Justice agreed with the approach adopted by Yeats DCJ in Re Richardson:[34]
I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
[34] Re Richardson [31] (Yeats DCJ); Attorney General [33].
The proper interpretation of CICA s 39 is also informed by considering the interpretation rejected by the Chief Justice:[35]
SW's assertion must be rejected. Its success depends critically upon the narrow approach to the construction of the temporal connection between the commission of the offence by the claimant, and the suffering of the claimant's injuries, which I have rejected because it would be inconsistent with the evident purpose of s 39 of the Act. Put another way, SW's assertion is essentially to the effect that in order to be excluded from compensation by the operation of s 39, it would have to be concluded that she was committing a criminal offence at the exact instant in time at which she was indecently assaulted or sexually penetrated. It is asserted on her behalf that because there is no evidence to the effect that she was using amphetamines at the precise time she was sexually assaulted, it could not be concluded that she was committing an offence 'when' she suffered the injuries for which she claims compensation.
[35] Attorney General [53].
The parties referred to a number of subsequent District Court decisions which have applied in the decision in Attorney General.[36]Given my findings on duress, it is not necessary for me to consider the facts of these decisions.
[36] KBR v ADM [2018] WADC 120 [19], [65] - [69] (Gillan DCJ); Re Puterangi [2017] WADC 168 [58] ‑ [67] (Davis DCJ); McDavitt [19] - [22] (Davis DCJ); CJJ v WAP [2012] WADC 25 [50] ‑ [74] (Keen DCJ).
There is then a second issue of interpretation. Paragraph 39(2)(b) requires the Assessor to be satisfied that the 'death occurred' when the person was committing a separate offence.
In the present case, the Deceased did not die at the point of the collision, rather some hours later on the following day.
There are two possible interpretations.
A strict interpretation would mean that the 'death' must in fact occur when the person was committing the separate offence. In the present case, the Deceased died at Royal Perth Hospital the following day. In no way can it be said that there was a temporal connection between any offending by the Deceased some hours earlier in Auburn and his death later at Royal Perth Hospital. It no way could it be said that 'when' the Deceased was in a critical condition, lying badly injured on a hospital bed, he was committing (driving) offences.
There is a second possible interpretation of the phrase 'death occurred', which I will refer to as the purposive approach. This is that it is sufficient if the death occurred as a result of injuries sustained 'when' the person was committing the separate offence.
CICA s 39(2)(b) is to be construed in a manner that would promote the purpose or object underlying that legislation.[37] In Attorney General the Chief Justice set out the evident purpose of CICA s 39 in the following terms:[38]
The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
[37] Interpretation Act 1984 (WA) s 18.
[38] Attorney General [32].

The Chief Justice added that 'it is clear from the Act as a whole that it reflects a legislative intention to provide compensation to victims of crime in some but not all circumstances'.[39]
[39] Attorney General [42].
The strict interpretation leads to anomalous results. Take the Chief Justice's example: A seeks compensation for injury suffered during an assault from B which was the retaliatory response to an assault which A initiated but the retaliation went beyond self-defence. Pursuant to CICA s 39(1)(b), A could not be awarded compensation as he suffered his injury when he was committing an offence (the initial assault on B).
Assume A dies immediately as a result of the retaliatory response by B. Pursuant to CICA s 39(2)(b), A's close relatives could not be awarded compensation as A's death occurred when A was committing a separate offence (the initial assault on B). This is the strict interpretation.
Assume A is injured and dies as a direct consequence of the retaliatory response by B a day later. On the strict interpretation, A's close relatives could be awarded compensation as A's death did not occur when A was committing a separate offence (the initial assault on B). However, this cuts across the policy identified by the Chief Justice to preclude the payment of compensation where the injury (or death) occurred as a consequence of the commission of an offence by the person who was injured or died.
My preliminary view is that the purposive interpretation is to be preferred. However, in this appeal it is not necessary for me to express a final view. This is because even on the purposive interpretation I would not be satisfied that the Appellants' claims fall within CICA s 39(2)(b). I do not consider that the Deceased sustained the injuries from which he ultimately died 'when' he was committing separate offences. As I have found, he was not committing offences from the point in time the pursuit began until the point of impact because he was acting under duress. Were it not for the defence of duress, the Deceased clearly would have been committing separate offences when he sustained the injuries which caused his death. However, I do not consider that the Deceased was injured 'when' he was committing the offences prior to the commencement of the pursuit. The commencement of the pursuit fundamentally changed the legal characterisation of the Deceased's acts, such that after the pursuit began he was no longer committing offences (even though the acts were the same and continuing).
On either interpretation, I am satisfied that the death of the Deceased did not occur when he was committing a separate offence. It follows that I am not satisfied that the Appellants' claims for compensation must be refused pursuant to CICA s 39(2).

Is the outcome on the second issues different for the application of CICA s 35(2)?

The short answer is no.
The relevant phrase in CICA s 35(3)(b) is that 'the death occurred or the injury was suffered when the person was committing a separate offence'. In context, the phrase 'injury was suffered' appears to apply only to a claim by an injured person, not a claim by a close relative where a person has died. Even if it does not, the paragraph then reads like the purposive interpretation of CICA s 39(2)(b). Either way, neither the death of the Deceased nor the injuries which caused his death occurred when he was committing a separate offence. So either way, I am not satisfied that the Appellants' claims for compensation must be refused pursuant to CICA s 35(3)(b).

What final orders are appropriate?

The Decision of the Assessor to refuse the Appellants' applications should be set aside.
I will hear from the parties as to costs and as to the orders required to program the balance of the appeal for hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate
20 MARCH 2020